Fifth Amendment in the Digital Age

August 18, 2011

USA v. Whatcott is an ongoing federal case regarding mortgage fraud that poses an interesting question regarding the scope of the Fifth Amendment in the digital age.  In Whatcott, the prosecutors wanted defendant Ramona Fricosu to decrypt her laptop to make the contents of the laptop available to the government. Defendant claims that this would violate her Fifth Amendment rights against self-incrimination.

EFF filed an amicus trial brief “to help the Court apply the Fifth Amendment privilege against self-incrimination in a manner that ensures the constitutional rights of those who use this technological measure [encryption] to protect their privacy and security.”  See entry 172 at 1:10CR00509.

EFF stated that their interest in this case, “is the sound and principled application of the Fifth Amendment to encryption passwords and encrypted information stored on computers.” “EFF submits in this brief that “Fricosu will be made a witness against herself if she is forced to supply information that will give prosecutors access to files they speculate will be helpful to their case but cannot identify with any specificity.”  On Page 9 the EFF argues, “The Act of Entering a Password or Otherwise Decrypting Data on a Computer is a Compelled Testimonial Act Protected By The Fifth Amendment.” EFF further argues that “forcing an individual to supply a password necessary to decrypt data is more like revealing the combination to a wall safe than to surrender a key.” The Government replied that, “[t]he privilege against self-incrimination must be interpreted narrowly and is not a mechanism to protect abstract privacy.” See, docket entry 177.

In an order dated July 26, 2011, the Court stated that, “Unless the government establishes by at least a preponderance of the evidence that the laptop that is the subject of the application belonged to defendant, requiring her to provide the password thereto would force her to admit ownership of the laptop, in ostensible violation of the Fifth Amendment.” See docket entry 182. The court scheduled a hearing in this matter for October 19, 2011.

To track this docket to follow up on all the developments in this case, Find the docket by going into the Dockets for the District Court of Colorado database (DOCK-CO-DCT on Westlaw) and run the docket number 1:10CR00509 or simply click on this link:  DN(1:10CR00509). For WestlawNext, click here.

Once you have accessed the docket for this case, you can click on “Track this Docket” (Westlaw) or “Track” (WestlawNext) to keep abreast of the developments in this case:

Click to Enlarge

Other Research References

For general state of the law on this subject, try these traditional boolean searches:

CASES: In ALLCASES, try 

(FIFTH VTH /2 AMEND!) SELF-INCRIMINAT! /P PASSWORD (DIGITAL! ELECTRONIC! /5 KEY ACCESS!) ENCRYPT! DECRYPT! USER-NAME

SECONDARY SOURCES: In TP-ALL, try

 (FIFTH VTH /2 AMEND!) SELF-INCRIMINAT! /25 PASSWORD (DIGITAL! ELECTRONIC! /5 KEY ACCESS!) ENCRYPT! DECRYPT! USER-NAME

TRIAL FILINGS: In FILING-ALL, try

 (FIFTH VTH /2 AMEND!) SELF-INCRIMINAT! /25 PASSWORD (DIGITAL! ELECTRONIC! /5 KEY ACCESS!) ENCRYPT! DECRYPT! USER-NAME

and 

 BRIEF-ALL: (FIFTH VTH /2 AMEND!) SELF-INCRIMINAT! /25 PASSWORD (DIGITAL! ELECTRONIC! /5 KEY ACCESS!) ENCRYPT! DECRYPT! USER-NAME

NEWS: In ALLNEWSPLUS, try

 (FIFTH VTH /2 AMEND!) SELF-INCRIMINAT! /25 PASSWORD (DIGITAL! ELECTRONIC! /5 KEY ACCESS!) ENCRYPT! DECRYPT! USER-NAME