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Tenth Circuit Won't Protect Ramona Fricosu's Password

By Robyn Hagan Cain on February 22, 2012 | Last updated on March 21, 2019

This week, the Tenth Circuit Court of Appeals refused to address whether turning a password over to the authorities amounts to self-incrimination because it lacked jurisdiction to hear the case.

That means that Ramona Fricosu must comply with U.S. District Judge Robert Blackburn's order to turn over an unencrypted version of her hard drive that requires a password for investigators to examine documents, according to the Huffington Post.

Fricosu has until Monday to obey the order.

Fricosu is accused of mortgage and real estate fraud. The government seized an encrypted laptop from Fricosu's home, and then asked the court to compel Fricosu to type the password into the computer or turn over a decrypted version of her data, according to the Electronic Frontier Foundation (EFF). Though the government offered Fricosu limited immunity, it did not provide adequate assurances that it won't use the information on the computer to prosecute her.

Fricosu's attorney, Phillip Dubois, has argued that forcing a suspect or defendant to turn over a computer password amounts to self-incrimination in violation of the Fifth Amendment. The EFF made a similar argument in an amicus brief, claiming that the court should not force Fricosu to become a witness against herself.

The government, on the other hand, maintains that disabling prosecutors' access to encrypted computers would make it impossible to prosecute crimes such as child exploitation, national security, terrorism, financial crimes and drug trafficking cases, reports the Huffington Post.

The Fifth Amendment's protection against self-incrimination applies only when the accused is compelled to make a testimonial communication -- a communication explicitly or implicitly, relates a factual assertion or discloses information -- that is incriminating. If a person is "not required to disclose any knowledge he might have, or to speak his guilt," the communication is non-testimonial, and is not protected under current jurisprudence.

Could Ramona Fricosu's case prompt a jurisprudential shift on non-testimonial communications? In U.S. v. Jones, Supreme Court dissenters presented a strong case for why the Supreme Court should reconsider how technological advances affect the rights of the accused; do cases like Fricosu's demonstrate an increased need for clarification regarding how the Bill of Rights should be applied to modern technology?

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