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The Fifth Amendment right to avoid self-incrimination does not apply to encrypted laptops, according to a federal judge in Colorado.
The judge came to this conclusion in the case of Ramona Fricosu, a woman accused of bank fraud, wire fraud and money laundering. Investigators believe her encrypted laptop holds vital evidence, but she has refused to provide her password.
Instead, she hid behind the Fifth Amendment, claiming it protects her from a court order to decrypt the laptop. The judge does not agree.
In some instances, the production of a document may be protected by the Fifth Amendment. This is because the very act of providing the document is an acknowledgment of its existence and authenticity, as well as the defendant's control.
Providing a password to an encrypted laptop is similar in that the defendant is acknowledging the computer's ownership.
The judge rejected this theory of Fifth Amendment protection because the government has proven -- by a preponderance of the evidence -- that the encrypted laptop belonged to Ramona Fricosu.
He therefore issued a court order to decrypt the laptop and provide prosecutors with a copy.
Courts are split on this issue. A federal judge in Vermont came to the same conclusion, but a Michigan court refused to grant such an order. There are also no controlling cases from the federal appellate courts or from the U.S. Supreme Court.
Ramona Fricosu thus has a decent chancing of winning her appeal. Her lawyers have also asked the 10th Circuit to stay the order to decrypt the laptop while it considers her argument.
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.