In a law enforcement investigation, can the government compel you to reveal the passwords to unlock your encrypted storage devices and data? That’s the issue that the United States District Court for the District of Colorado must decide.
I recently wrote about “Government Searches of Cell Phones, Computers, and Digital Property.” It is important for personal representatives (executors), trustees, guardians, and conservators to know their rights if they believe there is a current or potential future law enforcement investigation or civil suit involving the incapacitated or deceased person.
Beyond just having the government search and seize the data stored in cell phones, smartphones, computers, and storage media, the government in U.S. v. Ramona Fricosu is now asking the judge to compel the defendant to reveal her password to an encrypted storage device. Basically, the government believes there are incriminating documents and data stored in a laptop computer found in Ms. Fricosu’s bedroom, but the government has not been able to access that data because it is encrypted. This raises an interesting Fifth Amendment issue, as well as important data security and privacy questions. The Fifth Amendment protects an individual from being compelled in a criminal case to be a witness against himself or herself. The question is whether this protection extends to passwords and data encryption.
The Electronic Frontier Foundation has written an amicus brief (PDF file) arguing that the Fifth Amendment should protect Ms. Fricosu from being compelled to decrypt the data. A July 11, 2011, article by Declan McCullagh on CNET explains more about the background in this case and the government’s position regarding the encrypted data. It will be interesting to see what the court decides.