![]() Courts already have ruled that that such protection extends to the contents of a defendant's minds, the argument goes, so why shouldn't a passphrase be shielded as well?įricosu was born in 1974 and living in Peyton as of 2010. On the other hand are civil libertarians citing other Supreme Court cases that conclude Americans can't be forced to give "compelled testimonial communications" and extending the legal shield of the Fifth Amendment to encryption passphrases. Supreme Court saying that defendants can be forced to provide fingerprints, blood samples, or voice recordings. That person can, in general, be legally compelled to hand over the key. ![]() Prosecutors tend to view PGP passphrases as akin to someone possessing a key to a safe filled with incriminating documents. Much of the discussion has been about what analogy comes closest. Justice Department attorney wrote an article in 1996, for instance, titled "Compelled Production of Plaintext and Keys.") The question of whether a criminal defendant can be legally compelled to cough up his encryption passphrase remains an unsettled one, with law review articles for at least the last 15 years arguing the merits of either approach. Attorney John Walsh saying "I hereby approve your request." Federal prosecutors, who did not immediately respond to a request for comment this afternoon, claimed in a brief that:īecause this involves a Fifth Amendment claim, Colorado prosecutors took the unusual step of seeking approval from headquarters in Washington, D.C.: On May 5, Assistant Attorney General Lanny Breuer sent a letter to Colorado U.S. Department of Justice, which argued, as CNET reported last summer, that Americans' Fifth Amendment right to remain silent doesn't apply to their encryption passphrases. Today's ruling from Blackburn sided with the U.S. "If that's the case, then we'll report that fact to the court, and the law is fairly clear that people cannot be punished for failure to do things they are unable to do," he said. It should not be treated as though it's just another day in Fourth Amendment litigation." (See CNET's interview last year with Dubois, who once represented PGP creator Phil Zimmermann.)ĭubois said that, in addition, his client may not be able to decrypt the laptop for any number of reasons. "I think it's a matter of national importance. "I hope to get a stay of execution of this order so we can file an appeal to the 10th Circuit Court of Appeals," Fricosu's attorney, Phil Dubois, said this afternoon. Ramona Fricosu, who is accused of being involved in a mortgage scam, has declined to decrypt a laptop encrypted with Symantec's PGP Desktop that the FBI found in her bedroom during a raid of a home she shared with her mother and children (and whether she's even able to do so is not yet clear).Ĭolorado Springs attorney Phil Dubois, who once represented PGP creator Phil Zimmermann, now finds himself fighting the feds over encryption a second time. He said the All Writs Act, which dates back to 1789 and has been used to require telephone companies to aid in surveillance, could be invoked in forcing decryption of hard drives as well. "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," Blackburn wrote in a 10-page opinion today. The Fifth Amendment says that nobody may be "compelled in any criminal case to be a witness against himself," which has become known as the right to avoid self-incrimination. Bush appointee, ruled that the Fifth Amendment posed no barrier to his decryption order. PGP Desktop: Even the FBI can't crack it! Symantecīlackburn, a George W.
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