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Part I - Defendant ordered by judge to decrypt laptop - she forgets password



 by Joseph Earnest  February 8, 2012


Newscast Media DENVER, Colorado  Federal Judge Blackburn of Denver, Colorado has ordered a woman to decrypt her laptop, and allow the government to access its contents.  The defendant, Ms. Fricosu, invoked the Constitution's Fifth Amendment, in order not to reveal the password to the computer, as a safety measure to keep her from self-incrimination.  She further said she has forgotten the password, therefore there was no way she can access the harddrive and retrieve the contents. If she does not comply, she could be held in contempt for refusing to obey the judge's order.


Ms. Fricosu's home was raided by the FBI with a search warrant, who proceeded to seize her computers including a laptop, but could not decrypt it.  The government believes Fricosu  has material on her computer that may be illegal, but have no way of proving their case unless she reveals the password, which she doesn't seem to remember.


Unfortunately for Ms. Fricosu, when she was in jail talking to a co-defendant on the prison telephone, she neglected the fact that such conversations between suspected criminals are often recorded, since the government owns the prison system.  In a conversation, she admitted that she knew the password, but was not going to reveal it to the feds, because she wanted be a wise-guy and make them sweat for it.  

A fragment of the conversation presented in court can be read below:


Ramona: Ookay (pause) uhm in a way I want them to find it.

Scott: Mm-hmm.

Ramona: And uhm because they will have to ask for my help uhm and in another way I don't want them to find it, let them let them work for it.

Scott: Right.

Ramona: You know what I mean.

Scott: Right (pause) yeah, if it's there, they, they will find it.

Ramona: Uhm, can they get past what they need to get past to get to it.

Scott: OK

Ramona: And my lawyer said I'm not obligated by law to give them any passwords or anything they need to figure things out for themselves.


Known Unknowns:

Donald Rumsfeld, Former Secretary of Defense for George W. Bush is famous for coining this phrase in a speech on February 12, 2002: "There are known knowns; there are things we know we know. We also know there are known unknowns; that is to say, we know there are some things we do not know. But there are also unknown unknownsthere are things we do not know, we do not know"


With this new information obtained from the conversation, the government ran back to the judge and introduced it as evidence, that the defendant was intentionally concealing the password to prevent them from accessing the "known unknowns" on Ms. Fricosu's laptop. The judge then issued them a warrant to search the laptop.


In his ruling, Judge Blackburn said: "The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself. . . The small universe of decisions dealing with the Fifth Amendment issues implicated by compelling a witness or defendant to provide a password to an encrypted computer or otherwise permit access to its unencrypted contents are instructive here."


The judge realizes he has a problem, noting that under prevailing Supreme Court precedent, a defendant cannot be compelled to reveal the contents of his mind, the magistrate judge found that the act of producing the password was testimonial and, therefore, privileged. (Accord United States v. Kirschner, 2010 WL 1257355 at *3-4 (E.D. Mich. March 30, 2010)). On appeal of that decision, the grand jury revised its request to require the defendant to produce, not the password itself, but rather an unencrypted version of the Z drive.


In this case, because Ms. Fricosu invoked the Fifth Amendment, the judge could not compel her to produce the password, and just like the case above, in order to bypass this legal impediment, the very clever judge, orders her to provide the government with access to the laptop's unencrypted contents.  Of course she would have to retrieve the password to access the harddrive.


The judge further opines: "Accordingly, I find and conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer.  Moreover, the government has offered Ms. Fricosu immunity, precluding it from using her act of producing the unencrypted contents of the laptop computer against her.

THEREFORE, IT IS ORDERED as follows:...That on or before February 21, 2012, defendant, SHALL PROVIDE counsel for the government in this case with an unencrypted copy of the hard drive of the Toshiba Satellite M305 laptop computer...That the government SHALL BE precluded from using Ms. Fricosu’s act of production of the unencrypted contents of the computer’s hard drive against her in any prosecution."

Yet there are several holes that can be poked in the government's case, by the defendant, if she has an attorney with a sharp eye. Before I proceed with this article, I wish to remind the readers that I am not an attorney, and simply have used my research background and investigative journalism skills to deconstruct this legal dilemma, therefore my analysis should not be misconstrued for legal advice.

Both the United States government and Ms. Fricosu have several legal hurdles to overcome, and upon my review of the facts that have so far been disclosed, it seems the government has a bigger problem than the defendant, and I will lay it out in great detail.  Find out in Part II the legal dilemma that plagues this case>>

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 The information in this article is presented to stimulate legal and scholarly debate, and is not intended as a substitute for legal advice from an attorney.






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