Many court decisions are couched in obscure legalese referring to a plethora of precedents that can make the layman’s eyes glaze over in total befuddlement. Many of these court decisions have no real effect on the average citizen as they are too specific and intended to apply to clearly criminal actions, but a recent Colorado federal district court ruling in the case of United States v. Fricosu could have considerable impact on how some consumer users maintain their data. The ruling is chock full of the typical legalese that requires an expert attorney to decipher, but the essence of the decision is clear. A defendant can be compelled to decrypt the contents of their computer when it is seized as evidence.
Skewing Justice into a Mirror Universe
When the Fifth Amendment to the US Constitution was enacted on December 15, 1791 none of the legislators of the time could have possibly foreseen the proliferation of computing devices, let alone the various means to encrypt the data they contain. The Amendment’s famous prohibition of self-incrimination was implemented in the eighteenth century in order to distance American justice from the widespread application of torture to obtain forced confessions, which had been considered standard practice in most European countries just a mere century earlier. When 21st century judges proceed to apply legal standards enacted for entirely different reasons, the effect is to skew modern justice into a mirror universe where what is essentially nonsensical becomes the law of the land.
Court Order to Unencrypt Data
The Colorado case centered around Ramona Fricosu, who is a defendant in a case dealing with mortgage fraud. Her attorney had argued that the prosecution’s demands that she provide the password to unencrypt the contents of her laptop’s hard drive constituted a violation of the Fifth Amendment’s protections against self-incrimination. Recognizing that forcing Fricosu into revealing that password would have significant legal repercussions, the judge in the case instead ordered the defendant to turn over the contents of the computer in an unencrypted form. This would not reveal the password, but would allow the prosecution full access to all of the data on the laptop.
Bookie’s Book = Encrypted Laptop
A bookie running a numbers racket cannot by law be coerced into providing their records of all the bets taken and the identifying information of their customers. That is a clear violation of the Fifth Amendment. If law enforcement agencies can obtain that data and turn it over to the prosecution, then it can legally be entered into evidence. But the bookie can’t be dragged into court and told that they have to turn over their books as this represents self-incriminating evidence. The difference between encrypted data on a seized computer and the bookie’s stashed-away record book is very slim in the legal judgment. The encryption was placed onto the computer to avoid access to that data by anyone but Fricosu herself. Ordering her to turn over that info from any perspective whether legal or layman should be deemed to be revelation of self-incriminating evidence.
There is the widespread public opinion that criminals should not be provided with the legal means to handicap their own legitimate prosecutions, but that is a violation of the basic human freedoms enshrined within the Constitution. There is only a very slight legal difference between what the court is compelling Fricosu to do and the coercion of confessions: A policy that would turn back the hands on the clock of justice to the 16th century when English Puritans would be tortured to reveal the names of their fellow believers.
For any American who was raised to believe in the typical values of the nation, the rapidly darkening United States of America of the 21st century might seem as if we are transitioning into a Twilight Zone where the most basic fundamentals of the Founding Fathers are being violated with abandon. As shown by the retreat of SOPA/PIPA, the online denizens can exercise their right to be heard. The Fricosu case might be a proper target for the next great internet protest.