Fifth Amendment held not violated by forced disclosure of unencrypted drive

The Colorado District Court is the latest to weigh in on the popular issue of whether a person can be forced to disclose a password or unencrypted files. In United States v. Fricosu, the court found that the defendant's Fifth Amendment right is not implicated by requiring production of an unencrypted version of the files. 2012 U.S. Dist. LEXIS 11083 (D. Colo. 2012).

After law enforcement seized six computers from the defendant's home, they were unable to break the encryption on one of the computers. The defendant refused to provide the password, arguing that such a requirement would violate her Fifth Amendment right against self-incrimination.

Two prior cases have dealt with this issue. In In re Grand Jury Subpoena to Boucher, 2007 WL 4246473 (D. Vt. 2007), the court required the defendant to provide either a password or an unencrypted copy of the specified files. However, as the EFF (Electronic Frontier Foundation) noted in their amicus brief to Fricosu, Boucher involved specific files identified as child pornography. Investigators could see the filenames but were unable to open the files. That is distinguishable in Fricosu because investigators only know of the types of files that will be on the computer. On that issue, the Fricosu court held, "The fact that [the government] does not know the specific content of any specific documents is not a barrier to production."

Also, in United States v. Kirschner, 2010 U.S. Dist. LEXIS 30603 (E.D. Mich. 2010), the court found that the defendant could not be compelled to disclose his password. The government argued in Fricosu that Kirschner does not apply they are providing the alternative of allowing production of decrypted files instead of the password.

In Fricosu, the EFF had argued that forcing Fricosu to provide the password or unencrypted files “would be an admission that she had control over the computer and the data stored on it before it was seized from her residence—which are critical admissions” and would therefore violate her Fifth Amendment rights.

In a recent post, I discussed TrueCrypt, a popular open-source software package that allows users to create hidden, encrypted volumes.