Compelling Access To Encrypted Information (Part II)

Over the defendant's Fifth Amendment objection, a District Court grants government application under the All Writs Act to provide the government “with an unencrypted copy of” a hard drive which was seized from the defendant’s bedroom by a search warrant, in United States v. Ramona Camelia Fricosu, 841 F.Supp.2d 1232 (D.CO. Jan. 23, 2012) (No. 10-CR-00509-REB)

Dearth Of Cases

Few cases have considered the circumstances in which the government can compel an individual to provide or use an encrypted password to allow the government to review the contents of a computer. The U.S. District Court for the District of Vermont addressed one aspect of this issue in 2009 in In re Grand Jury Subpoena to Sebastien Boucher (D.Vt. Feb. 19, 2009) (No. 2:06-mj-91) (known as "Boucher II"); see also Compelling Access To An Encrypted Laptop (Part I).

Also in 2009, the Fourth Circuit issued an unpublished opinion in a case involving the conviction on child pornography charges based on evidence obtained from his government-issued laptop. The defendant provided his computer password to the government. The Fourth Circuit rejected the defendant's Fifth Amendment claim based on the foregone conclusion doctrine: "Any self-incriminating testimony that he may have provided by revealing the password was already a 'foregone conclusion' because the Government independently proved that Gavegnano was the sole user and possessor of the computer." United States v. Gavegnano, 305 Fed. Appx. 954 (4th Cir. Jan. 16, 2009) (No. 07-4579).

In March 2010, U.S. Distirct Judge Paul D. Borman frpm the Eastern District of Michigan quashed a grand jury subpoena which required the defendant to provide grand jury testimony in a child pornography cases about his password to a laptop. See United Statesv v. Thomas J. Kirschner (ED Mich. 2010) (Order Granting Defendant’s Motion To Quash Grand Jury Subpoena For Defendant’s Testimony Based On His Fifth Amendment Privilege Against Self-Incrimination) (Misc No. 09-MC-50872). In that case, the court reasoned that "the government is not seeking documents or objects – it is seeking testimony from the Defendant, requiring him to divulge through his mental processes his password – that will be used to incriminate him.... This case is not about producing specific documents – it is about producing specific testimony asserting a fact."

Recent Fricosu Decision

Last week, the most recent decision on this issue was filed by U.S. District Judge Robert E. Blackburn from the District of Colorado in United States v. Ramona Camelia Fricosu, 841 F.Supp.2d 1232 (D.CO. Jan. 23, 2012) (No. 10-CR-00509-REB). In this latest case, during the execution of a search warrant agents seized six computers, including three desktops and three laptops. One of the laptops was encrypted and was found on the floor of the defendant’s bedroom. While in custody, the defendant spoke with her former husband in a call which was recorded. During the conversation, she mentioned information on her laptop which she wondered whether law enforcement would find and that her computer may have been protected. The government obtained a search warrant to search the laptop but was unable to examine the contents based on the encrypted hard drive.

Request Under The All Writs Act

The government moved under the All Writs Act, 28 U.S.C. § 1651, for an order to require her production of the unencrypted contents of her computer. See Application Under The All Writs Act Requiring Defendant Fricosu To Assist In The Execution Of Previously Issued Search Warrants (May 6, 2011). The defendant objected under the Fifth Amendment right against self-incrimination.

The All Writs Act provides, in part: “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”

In its Application, the government suggested that the laptop could be brought to the courtroom and the defendant could enter the password without government observation, as one option. The government requested production of “the contents of the drive in an unencrypted format” and was not requesting “access to the password to the drive, either orally or in written form.” The government also requested act of production immunity for the defendant (since the act of producing the information could communicate facts protected by the Fifth Amendment).

The defendant opposed the government’s application, noting in part that “[t]he existence and location of incriminating evidence on the encrypted drive are not a foregone conclusion” and that “the only key to the encrypted drive is, assuming that she possesses it, in Ms. Frisosu’s head, not on a key chain.” Defendant’s Response to the Government’s Application (July 8, 2011); see also Defendant’s Motion for Discovery – Seized Hard Drive (Apr. 27, 2011). See also Amicus Curiae Electronic Frontier Foundation Brief in Opposition (July 8, 2011); Government’s Reply To Amicus Curiae Brief Of Electronic Frontier Foundation (July 18, 2011).

Ruling

After several hearings, the District Court granted the motion under the All Writs Act. See United States v. Ramona Camelia Fricosu, No. 10-CR-00509-REB (Jan. 23, 2012); see also Minute Orders (Jan. 3, 2012) (evidentiary hearing) (Government's Exhibit List) (Defendant's Exhibit List) (Witness List); (Nov. 1 2011) (evidentiary hearing); (Oct. 19, 2011) (telephonic setting conference); (July 27, 2011) (telephonic setting conference); (July 22, 2011) (hearing). In its ruling, the District Court found:

that the government has met its burden to show by a preponderance of the evidence that the Toshiba Satellite M305 laptop computer belongs to Ms. Fricosu, or, in the alternative, that she was its sole or primary user, who, in any event, can access the encrypted contents of that laptop computer.
Additionally, the government was aware “of the existence and location of the computer files” and the absence of knowledge about the “specific content of any specific documents is not a barrier to production.” Order, at 8. The contents of the computer were not privileged since they apparently were compiled voluntarily. Order, at 6 n.6. The All Writs Act authorized the Court to issue “orders to effectuate an existing search warrant.” Order, at 9. The defendant was ordered to provide “counsel for the government in this case with an unencrypted copy of the hard drive of the” laptop. Order, at 10.

Unlikely Appellate Review In The Near Term

It is unlikely that the defendant can obtain an interlocutory appeal pending the prosecution of the case. Interlocutory review is limited under the final judgment rule, 28 U.S.C. 1291. Therefore, it seems that it will be some time before appellate courts address these interesting Fifth Amendment and technology issues. These cases have been fact-specific, largely turning on whether the government show that it is aware of the existence and location of the sought after documents. Eventually, the U.S. Supreme Court may decide to address the contours of the Fifth Amendment as it applies to digital information where appellate jurisdiction is established, normally following a final judgment in the case.

[Editor's Note: Subsequently, the Tenth Circuit declined review of the order compelling production of an unencrypted hard drive. See Fricosu v. United States, _ F.3d _ (10th Cir. Feb. 21, 2012) (No. 12-701) ("[W]e also note that even if the petition was construed as a notice of appeal, this court would lack jurisdiction to consider the resulting proceeding under any exception to our usual finality rules. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949).").]

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