Does the constitutional right against self-incrimination give a criminal defendant the right to withhold computer passwords that law enforcement could used to decrypt a hard drive and obtain evidence against that defendant? That question is at the root of a Colorado court case centering on multiple mortgage fraud schemes, and a defendant’s encrypted laptop.
In particular, an indictment returned by a Denver grand jury on Oct. 1, 2010, charged Ramona Fricosu (aka Ramona Smith), 36, of Peyton, Colo., among other defendants, with multiple counts of bank fraud, wire fraud, money laundering, and making false statements to a financial institution.
As part of that investigation, law enforcement agents obtained a search warrant for Fricosu’s house, which she shares with her mother, two children, and formerly shared with Scott Whatcott (aka Michael Scott Smith), 36, also a defendant in the case. As part of that search, investigators seized multiple computers and storage devices, including a Toshiba Satellite M305 laptop.
After obtaining another search warrant to search the laptop, investigators found that the contents had been encrypted. Accordingly, prosecutors demanded that Fricosu enter her password into the laptop, enabling them to decrypt the drive, or else provide them with a complete copy of the decrypted data.
But her attorney, Philip L. Dubois, has argued that doing so would violate her Fifth Amendment rights against self-incrimination. Dubois himself is no stranger to encryption, having previously defended Philip Zimmermann, who created Pretty Good Privacy (PGP) encryption software in 1991. Shortly after its introduction, the software became available abroad, which led to a Customs Service investigation in which Zimmermann was accused of breaking the Arms Export Control Act, for exporting strong cryptographic software, which was then classified as munitions. The investigation ended after three years; no charges were filed.