Topic: Woman forced to decrypt hard drive

[scottws]

Has anyone else been following this story:  A woman in Colorado has been accused of mortgage fraud.  She has an external hard drive on which some data has been encrypted with PGP and apparently prosecutors in the case believe that this data is key to their case.  Lower courts have asked for her passphrase to decrypt the data but she has refused, citing the 5th Amendment (basically she is stating that she is allowed by the U.S. Constitution to refuse to implicate herself); however, those courts and other courts higher in the appeals process that the 5th Amendment does not apply to this situation.

Here are some links to the story:
https://www.eff.org/cases/us-v-fricosu
http://news.cnet.com/8301-31921_3-57364330-281/judge-americans-can-be-forced-to-decrypt-their-laptops/
http://www.zdnet.com/blog/identity/woman-pleading-fifth-in-password-case-loses-appeal/267

I have been following this case to some degree and find the discussion about whether or not 5th Amendment rights apply extremely interesting.

I tend to think that being forced to decrypt the content (whether the passphrase is provided or the person is simply forced to perform the decryption without the passphrase being handed over is immaterial in my mind) is being forced to be a witness against oneself.  However, the CNET article linked above states that prosecutors tend to think of encryption certificates or passphrases like a physical key to a physical safe and the precedent exists to force people to provide the key to the safe, and this analogy does seem plausible as well.

What do you guys think?

[idolminds]

Yeah, its kind of an interesting situation. Especially since its just the prosecution that wants it to use it against you, so how is that not a 5th amendment thing?

Though what I would love to see is someone try to hack the file and then bust a DMCA on them.

[Cobra951]

I wonder why she didn't just say that she had forgotten the password.  I don't know how that encrypting software works, but if it's at all possible to set it to work automatically, then forgetting a password you don't have to type in manually is very plausible.  Also, I see no conceptual difference between refusing to decrypt this and refusing to answer questions on the basis that it might incriminate you (5th Amendment protection).

[scottws]

Actually, if you read some of the articles that came out yesterday it is pretty clear that the defense is going to "forget" the passphrase.

[scottws]

Apparently some courts are more sane: a federal appeals court ruled in favor of another individual who was claiming he was protected by the 5th amendment when he refused to provide his decryption key.

Dude is a probable child pornographer so it kind of sucks that he might get away with it, but in general this is a Good Thing™.