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Prosecutors Demand Laptop Password in Violation of Fifth Amendment

July 8, 2011

Prosecutors Demand Laptop Password in Violation of Fifth Amendment

EFF Urges Court to Uphold Privilege Against Self-Incrimination

San Francisco - The Electronic Frontier Foundation (EFF) urged a federal court in Colorado today to block the government's attempt to force a woman to enter a password into an encrypted laptop, arguing in an amicus brief that it would violate her Fifth Amendment privilege against self-incrimination.

A defendant in this case, Ramona Fricosu, is accused of fraudulent real estate transactions. During the investigation, the government seized an encrypted laptop from the home she shares with her family, and then asked the court to compel Fricosu to type the password into the computer or turn over a decrypted version of her data. But EFF told the court today that the demand is contrary to the Constitution, forcing Fricosu to become a witness against herself.

"Decrypting the data on the laptop can be, in and of itself, a testimonial act -- revealing control over a computer and the files on it," said EFF Senior Staff Attorney Marcia Hofmann. "Ordering the defendant to enter an encryption password puts her in the situation the Fifth Amendment was designed to prevent: having to choose between incriminating herself, lying under oath, or risking contempt of court."

The government has offered Fricosu some limited immunity in this case, but has not given adequate guarantees that it won't use the information on the computer against her.

"Our computers now hold years of email with family and friends, Internet browsing histories, financial and medical information, and the ability to access our online services like Facebook. People are right to use passwords and encryption to safeguard this data, and they deserve the law's full protection against the use of it against them," said EFF Staff Attorney Hanni Fakhoury. "This could be a very important case in applying Americans' Fifth Amendment rights in the digital age."

For the full amicus brief:
https://www.eff.org/files/filenode/us_v_fricosu/fricosuamicus7811.pdf

Contacts:

Hanni Fakhoury
Staff Attorney
Electronic Frontier Foundation
hanni@eff.org

Marcia Hofmann
Senior Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

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