A few months ago, a woman named Ramona Fricosu was charged with fraudulent real estate transactions in a mortgage scam. Police confiscated a laptop they found in her bedroom and believed there was potentially incriminating evidence residing in encrypted files.
Courts can certainly raid your computer and search it for evidence of criminal activity; they can force you to open encrypted files if you’re a suspected terrorist (stated by The Patriot Act); but if you plead the Fifth, they may not be able to make you give them passwords for encrypted data, or can they?
Because the police were unable to access the encrypted data, they needed Fricosu to enter the passwords to give them access. Fricosu’s attorney, Philip Dubois, insisted that “she can’t be constitutionally obligated to help the government open files that may be self-incrimination. In essence, she has a right to plead the Fifth.” The Electronic Frontier Foundation (EFF- an organization that defends people’s digital rights) agreed.
Hanni Fakhoury, staff attorney at the Electionic Fraontier Foundation, stated “If the government had the computer and it was not encrypted, they would have the right to it under lawful possession, they have the right to search it. They can’t break into the computer, so they want to force her to break into it. They can’t force you to give up the evidence necessary to incriminate you. Forcing her to de-encrypt it would do that.”
While this case got the EFF’s support behind it, not all access to evidence that is potentially self-incriminating is protected by the Fifth Amendment. Sometimes the degree of self-incrimination is defined by the defendant and sometimes the defendant has no rights under the Fifth at all. So what do you think- should the government have the right to force people to provide passwords for encrypted data that may be self-incriminating?