Violation of the 5th Amendment?

[ASUG8]

A judge has reportedly ordered a Colorado woman to decrypt her laptop computer so prosecutors may use the files against her in a criminal case involving alleged bank fraud.

The defendant, Ramona Fricosu, had unsuccessfully argued that being forced to do so would violate the Fifth Amendment protection against compelled self-incrimination, Wired reports.

“I conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer,” Colorado U.S. District Judge Robert Blackburn ruled Monday.

The case is being closely watched by civil rights groups, Wired reports, as the issue has never been fully considered by the Supreme Court. Authorities seized the laptop from Fricosu in 2010 with a court warrant while investigating financial fraud.

Blackburn ordered Fricosu to surrender an unencrypted hard drive by Feb. 21. The judge added that the government is precluded “from using Ms. Fricosu's act of production of the unencrypted hard drive against her in any prosecution," Wired reports.

http://www.foxnews.com/scitech/2012/01/ ... pt-laptop/" onclick="window.open(this.href);return false;

[89Hen]

Far smarter people than I will be weighing in, but this will be interesting to watch.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

[89Hen]

A couple immediate thoughts... how would this be different than a person having to give a DNA sample? I've seen law enforcement carrying boxes and boxes of records out of people's homes and businesses. First blush I'm thinking this is no more an infringement on 5th Amendment.

[ASUG8]

A couple immediate thoughts... how would this be different than a person having to give a DNA sample? I've seen law enforcement carrying boxes and boxes of records out of people's homes and businesses. First blush I'm thinking this is no more an infringement on 5th Amendment.

I get ya Hen, but I'm thinking they've already proven probable cause to search and seize her equipment (no questions there). Asking her to decrypt it is where it gets sticky for me - what's her incentive to do what law enforcement can't which will likely incriminate her?

[DSUrocks07]

I would tell the judge to go **** himself and have a nice day

[UNI88]

I would tell the judge to go **** himself and have a nice day

What does she have to lose if she says "No"? Contempt of court vs. bank fraud? What would you choose?

[AZGrizFan]

A couple immediate thoughts... how would this be different than a person having to give a DNA sample? I've seen law enforcement carrying boxes and boxes of records out of people's homes and businesses. First blush I'm thinking this is no more an infringement on 5th Amendment.

I get ya Hen, but I'm thinking they've already proven probable cause to search and seize her equipment (no questions there). Asking her to decrypt it is where it gets sticky for me - what's her incentive to do what law enforcement can't which will likely incriminate her?

What kind of barney fife cops are these that can't decrypt her computer? Fuckin' bozos. Go hire a 19-year-old hacker and he'll be in in 10 minutes.

[89Hen]

A couple immediate thoughts... how would this be different than a person having to give a DNA sample? I've seen law enforcement carrying boxes and boxes of records out of people's homes and businesses. First blush I'm thinking this is no more an infringement on 5th Amendment.

I get ya Hen, but I'm thinking they've already proven probable cause to search and seize her equipment (no questions there). Asking her to decrypt it is where it gets sticky for me - what's her incentive to do what law enforcement can't which will likely incriminate her?

Doesn't address why you can be forced to give a DNA sample (can you be forced?).

[ASUG8]

I get ya Hen, but I'm thinking they've already proven probable cause to search and seize her equipment (no questions there). Asking her to decrypt it is where it gets sticky for me - what's her incentive to do what law enforcement can't which will likely incriminate her?

Doesn't address why you can be forced to give a DNA sample (can you be forced?).

This distinction between "testimonial or communicative" evidence and "non-testimonial" (real or physical) evidence means that the Fifth Amendment does not protect you from being forced to submit to such things as fingerprinting, photographing, measurements, blood samples, or DNA evidence. Nor does it protect you against standing in a lineup or demonstrating your walk.

The Fifth Amendment doesn't even mean that you can't be forced to speak. The Supreme Court has held that the state can force suspects to speak if it's for the purpose of identifying the physical properties of their voice and not for providing testimony.

http://www.slate.com/articles/news_and_ ... ights.html" onclick="window.open(this.href);return false;

[89Hen]

This distinction between "testimonial or communicative" evidence and "non-testimonial" (real or physical) evidence....

Law is fascinating. I didn't see anything close to approaching testimonial vs non-testimonial language in the 5th Amendment. Is there more to it somewhere?

[travelinman67]

I get ya Hen, but I'm thinking they've already proven probable cause to search and seize her equipment (no questions there). Asking her to decrypt it is where it gets sticky for me - what's her incentive to do what law enforcement can't which will likely incriminate her?

What kind of barney fife cops are these that can't decrypt her computer? Fuckin' bozos. Go hire a 19-year-old hacker and he'll be in in 10 minutes.

Agreed. Kinda sounds like a test case. Don't know that much about encryption, but I recall the old 512k PGP keys getting hacked by high school kids. I realize there's some pretty serious stuff out there, but ANYTHING can be hacked.

As for the 5th amendment, I'd lean towards applicability. Regardless of evidence location, if L.E. "requires" defendant's participation to "gather" the evidence, defendant is being compelled to involunarily provide incriminating evidence against themselves. How's this any different than the judge ordering the defendant to provide L.E. with the locations/nature of all incriminating evidence?

[blueballs]

Send her to Gitmo and give her the cockmeat sandwich... that'll straighten her out.

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[danefan]

What kind of barney fife cops are these that can't decrypt her computer? Fuckin' bozos. Go hire a 19-year-old hacker and he'll be in in 10 minutes.

Agreed. Kinda sounds like a test case. Don't know that much about encryption, but I recall the old 512k PGP keys getting hacked by high school kids. I realize there's some pretty serious stuff out there, but ANYTHING can be hacked.

As for the 5th amendment, I'd lean towards applicability. Regardless of evidence location, if L.E. "requires" defendant's participation to "gather" the evidence, defendant is being compelled to involunarily provide incriminating evidence against themselves. How's this any different than the judge ordering the defendant to provide L.E. with the locations/nature of all incriminating evidence?

I agree. No judge would be allowed to "force" a defendant to tell "where the body" is. Why is this any different. If the cops can't make a case without the defendant doing their work for them, than doesn't our system require us to assume that person is not guilty until they can?