Constitutional Law

Judge Orders Mortgage Fraud Defendant to Reveal Encrypted Contents of Laptop

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A federal judge in Colorado has ordered a woman accused of mortgage fraud to produce the encrypted contents on her laptop.

U.S. District Judge Robert Blackburn said the Fifth Amendment is not implicated by his order, report the blog Technolog, the Wired blog Threat Level and CNet.

Blackburn cited a recorded phone conversation between defendant Ramona Fricosu and her incarcerated husband in which they discussed the password-protected laptop seized by law enforcement. “There is little question here but that the government knows of the existence and location of the computer’s files,” Blackburn said in his decision (PDF). “The fact that it does not know the specific content of any specific documents is not a barrier to production.”

CNet sums up the typical arguments in laptop cases. Prosecutors argue computer passwords are similar to a key to a safe holding incriminating documents. The person with the key could be compelled to turn it over. Civil libertarians claim defendants can’t be forced to give up passwords because of the Fifth Amendment protection against compelled testimony.

According to CNet, “Prosecutors in this case have stressed that they don’t actually require the passphrase itself, and today’s order appears to permit Fricosu to type it in and unlock the files without anyone looking over her shoulder.”

Blackburn said he was authorized to issue the order under the All Writs Act. According to CNet, the law dates back to 1789 and has been used to require telephone companies to aid in surveillance.

Prior coverage: “Prosecutors Seek Court Order for Suspect to Turn Over Computer Password”

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