Judge Overlooks the Fifth Amendment, Forces Defendant to Decrypt Laptop

Until a few days ago, privacy and free speech laws were respected and handled with utmost care in the US. This made the US a role model, when it came to privacy laws. However, after the recent upheaval, these protections are falling apart. SOPA/PIPA has attempted to ridiculed free speech in the name of censorship, by paving a path to attack all websites with user-generated content. However, something that has not happened in years, and has been a big issue for the federal government in handling cases involving storage media, is finally happening after all.

In an ongoing case, Judge Robert Blackburn ordered a woman to decrypt the hard-drive of her laptop no later than 21st of this month, or face contempt of court charges. This is a critical matter, as decisions in many similar cases have been affected because of the protections provided by the Fifth Amendment. The Fifth Amendment protects against exactly these situations, where someone could be forced to provide evidence against them.

However, Judge Blackburn has a different interpretation of the 5th Amendment, and says

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.

He also cites a 1789 law, that was used to force telephone companies to aid in surveillance, and can be used to force decryption of hard-drives (don’t ask me how)! Federal Prosecutors explain why this decision was taken, claiming that

Public interests will be harmed absent requiring defendants to make available unencrypted contents in circumstances like these. Failing to compel Ms. Fricosu amounts to a concession to her and potential criminals (be it in child exploitation, national security, terrorism, financial crimes or drug trafficking cases) that encrypting all inculpatory digital evidence will serve to defeat the efforts of law enforcement officers to obtain such evidence through judicially authorized search warrants, and thus make their prosecution impossible.

The defendant has Phil Dubois as her lawyer, who also represented PGP creator Phil Zimmermann, in a case.

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