The District of Colorado recently handed down an order in United States v. Fricosu requiring the defendant to decrypt the contents on her laptop so the government could access it. According to the Court, compelled decryption did not violate the Fifth Amendment’s bar against compelled self-incrimination.
In reaching this decision, the Court relied upon In re Grand Jury Subpoena to Boucher, 2007 WL 4246473 (D. Vt. Nov. 29, 2007) (Boucher I) and In re Grand Jury Subpoena to Boucher, 2009 WL 424718 (D. Vt. Feb. 19, 2009) (Boucher II). The Boucher decisions, in turn, relied upon the Supreme Court’s decision in United States v. Doe, 487 U.S. 201 (1984).
Doe distinguished between compelling the testimony of new information to the government (not permitted under the Fifth Amendment) and compelling giving access to existing information (permitted so long as the act of production results in no new facts). Thus, a defendant may be compelled to provide a key to a wall safe. In contrast, a defendant may not be compelled to provide a combination since the combination itself would constitute new information. Therefore, the government may compel a defendant to provide access to a computer’s contents once it knows the defendant has the ability to access the computer. But it may not compel production of a password. Continue reading