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Must Defendant Give DOJ the Password to Her Encrypted Laptop? Federal Court Will Decide

Posted Jul 11, 2011 5:54 PM CDT
By Martha Neil

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Is the password to an encrypted laptop more like a key to a lock or a handwritten key to a secret code?

That is the question a federal court will probably have to answer in deciding whether a Colorado woman must give the feds the password to an encrypted laptop seized in her bedroom, according to CNET News' Privacy Inc. blog.

Ramona Fricosu wouldn't have to provide the password, but rather enter it herself to release the material being sought by the U.S. Department of Justice. But her lawyer, Philip Dubois, is objecting to the disclosure. Fricosu is facing bank fraud, wire fraud, and money laundering charges for allegedly seeking to take title to foreclosed homes, along with her husband.

"Decrypting the data on the laptop can be, in and of itself, a testimonial act—revealing control over a computer and the files on it," says attorney Marcia Hofmann of the Electronic Frontier Foundation, which has filed an amicus brief (PDF) on Fricosu's behalf. "Ordering the defendant to enter an encryption password puts her in the situation the Fifth Amendment was designed to prevent: having to choose between incriminating herself, lying under oath, or risking contempt of court."

Hat tip: Slashdot.

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