Cryptic Compulsion: the Intersection of Technology and Constitutional Protection

Every US citizen has a constitutional right precluding self-incrimination, which basically means that a criminal suspect cannot be compelled to incriminate himself. With that in mind, here’s a hypothetical for you to mull over: let’s say that you have been charged with a crime and that your personal computer, which you have encrypted for security purposes, might house some files that comprise evidence of said crime. Can a court require you to decrypt your computer in order to search for the presence of such files, which, if found, will subsequently be used by the prosecution in its case against you?

This situation comes straight from the matter of the United States of America v. Ramona Camelia Fricosu, where the defendant, a Colorado woman accused of having committed bank fraud, has been ordered by the District Court to decrypt her laptop. Fricosu’s computer was seized during the prosecution’s initial investigation back in 2010, but the data situated within it has yet to be perused by the government due to the computer’s full disk data encryption.

Perhaps the most interesting tidbit in this situation is that the government is unsure as to whether Fricosu’s laptop has any incriminating data on it at all. It seems as though the aforementioned court order was issued merely for the purpose of the prosecution to potentially gain important evidence against the defendant. According to Assistant U.S. Attorney Patricia Davies, however, Judge Robert Blackburn made the order by reasoning that it prevents future criminals from having the charges against them dropped solely because they encrypted all incriminating digital evidence – a worthy precedent to set in this digital age in which we live.

A similar situation presented in the matter of In re Boucher. In that case, the defendant was traveling from Canada into the United States with a laptop that border agents asked to see in use. When the defendant powered it up, the agents caught a glimpse of child pornography, which led to an arrest and confiscation of the computer. Defendant Boucher’s laptop drive was encrypted, but the court there ordered it to be decrypted. After he decrypted the drive, the prosecution gained substantial new evidence favoring its case against the defendant. Nevertheless, the present matter differs in an arguably significant manner in that here the government is unsure as to whether there are any incriminating files on Fricosu’s computer, whereas in the above it knew that there was evidence on Boucher’s. This knowledge element lends a troubling additive to the already perplexing dispute.

What this really boils down to is whether the court order deprives Fricosu of her constitutional right against self-incrimination. Case law on the topic dictates that what is protected by the Fifth Amendment is a criminal suspect’s being compelled to incriminate himself, as opposed to his voluntarily disclosing of inculpatory matters (see United States v. Hubbell and Fisher v. United States for more on this).

Further, there is a fine line between compelled acts under the Fifth Amendment and those not under it. In its amicus brief filed with the Colorado U.S. District Court, the Electronic Frontier Foundation (“EFF”) maintains that “[t]he Supreme Court has explained that a witness might be ‘forced to surrender a key to a strongbox containing incriminating documents,’ but not ‘compelled to reveal the combination to a wall safe’” (citing Doe v. United States). The EFF contends that the present matter is likened more to the latter type of compulsion since the defendant is being compelled to provide an intangible, testimonial pass code rather than a physical key of sorts, and therefore that her Fifth Amendment rights are being violated via the court order.

In its most simplistic form, this matter asks one to balance the privacy interests and constitutional rights of a criminal suspect against the government’s (and the public’s) interest in justice. Davies makes a fair point about not wanting to set a dangerous precedent for escapists, but the fact remains that sometimes the best interests of justice require the preservation of constitutional rights. Anyway, comment below with your thoughts… is the court order unconstitutionally out of line, is it exactly what our justice system requires in this modern day, or is the tone it sets a little too drastic? Speak up now before SCOTUS decides the issues three [plus] years from now.

About Keith Schonberger

By day, Keith is an aspiring patent attorney with two or more opinions on everything. By night, he's a caped crusader/rock star. It's an awesome life.
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