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News Link • Criminal Justice System

Forcing Defendant to Decrypt Hard Drive Is Unconstitutional, Appeals Court Rules

The defendant in April had refused to comport with a Florida federal grand jury’s orders that he decrypt the data, which was encrypted with TrueCrypt. A judge held him in contempt and jailed him until December 15, when the circuit court released him ahead of Thursday’s ruling.
“The government’s attempt to force this man to decrypt his data put him in the Catch-22 the Fifth Amendment was designed to prevent — having to choose between self-incrimination or risking contempt of court,” said EFF senior staff attorney Marcia Hofmann, who had filed an amicus brief in the case.
It was the nation’s first appellate court to issue such a finding. And the outcome comes a day after a different federal appeals court refused to entertain an appeal from another defendant ordered by a lower federal court to decrypt a hard drive by month’s end.
In the other decryption case, the Denver-based 10th U.S. Circuit Court of Appeals on Wednesday sided with the government’s contention that Colorado bank-fraud defendant Ramona Fricosu must be convicted before the circuit court would entertain an appeal of a decryption order.
The court did not address the 5th Amendment arguments and instead said the case was not procedurally ripe for appeal.
Fricosu’s attorney, Philip Dubois, said in a telephone interview Friday that new developments in the case may moot the constitutional showdown in his client’s case.
He said a co-defendant, Scott Whatcott, has forwarded passwords to the authorities.
Dubios said it was not immediately known whether those passwords would unlock the hard drive in the Toshiba laptop seized from Fricosu with valid warrants in 2010. If they do, then the 5th Amendment issue is off the table, Dubois said.
If the passwords don’t work, Dubois said, Fricosu “will definitely make her best effort” to decrypt the laptop, although she may have forgotten the password.

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