Case sparks password debate

DENVER -- Sophisticated encryption software has become so readily available and so effective, it's surpassed the federal government's ability to seize computers and gather evidence in criminal cases.

That development has raised questions in a mortgage and real estate fraud criminal case in U.S. District Court in Denver about whether turning over a computer password amounts to a violation of the Fifth Amendment's protection against self-incrimination.

The 10th U.S. Circuit Court of Appeals on Tuesday refused to get involved in the case involving Ramona Fricosu of Colorado Springs, who has until Monday to comply with a judge's order and turn over an unencrypted version of the hard drive of a laptop. Fricosu's criminal case must first be resolved in the lower court before her attorney can appeal the order, the appellate court ruled.

But there's a twist.

"It is possible that Ms. Fricosu has no ability to decrypt the computer, because she probably did not set up the encryption on that computer and may not know or remember the password or passphrase," her attorney, Phillip Dubois, said in a statement.

Federal prosecutors argue not allowing the government access to encrypted computers would make it impossible to prosecute crimes such as terrorism, child exploitation and drug trafficking.

A judge last month sidestepped the issue of ordering Fricosu to turn over her password, and instead ordered her to turn over an unencrypted version of the hard drive. Prosecutors had argued the password was like gaining a key to a lock box and other instances where a defendant signs documents to allow investigators to access overseas accounts.

But DuBois said that the order establishes "a very dangerous precedent that a person may be forced to assist in her prosecution in a way the law has not seen ever before."

In a procedure agreed upon by DuBois and federal prosecutors, federal agents would meet Fricosu at a designated place with the laptop, which was seized during a search warrant. Then, the government will either look away or go to another room while Fricosu enters a password on her laptop and hands it back to agents so the hard drive can be copied.

U.S. District Judge Robert E. Blackburn noted that the contents of one's mind is off limits, but ordered Fricosu to turn over an unencrypted version of her computer's hard drive, citing a Vermont case that stemmed from a 2006 border crossing search in which a man was later ordered to do the same.

The courts in that case noted that an Immigration and Customs Enforcement agent had found child pornography on the computer, but couldn't access it later because of encryption, and turning over the unencrypted hard drive added nothing to the evidence the government already had.

Blackburn also noted there were only a few cases on which to base his ruling.

In Fricosu's case, "the government has no idea what's on that computer," DuBois said. That element makes it different from other cases, he said.