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The Colorado prosecution of a woman accused of a mortgage scam will test whether the government can punish you for refusing to disclose your encryption passphrase.
The Obama administration has asked a federal judge to order the defendant, Ramona Fricosu, to decrypt an encrypted laptop that police found in her bedroom during a raid of her home.
Because Fricosu has opposed the proposal, this could turn into a precedent-setting case. No U.S. appeals court appears to have ruled on whether such an order would be legal or not under the U.S. Constitution's Fifth Amendment, which broadly protects Americans' right to remain silent.
In an amicus brief (PDF) filed on Friday, the San Francisco-based Electronic Frontier Foundation argues that the Justice Department's request be rejected because of Fricosu's Fifth Amendment rights. The Fifth Amendment says that "no person...shall be compelled in any criminal case to be a witness against himself."
"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."
Originally posted by kid_of_3NKi
What can they do to you if you just say you forgot the password? Or you wrote the password on a piece of paper which you can't find anymore? How can they prove that your statement is a lie? They can't prove it!
Originally posted by EyesII
I think you can place one encypted volume within another encrypted volume, within another encrypted volume, and so on, and so on. Go at least 10 levels deep. Yes it will chew up some disk space, but it can be done. How will the DOJ know when they have reached the final volume, and there are no more to find? They won't.
I have not tried it, but I know of someone who has.
My question is how does someone remember all those passwords???? lol!!!
"If agents execute a search warrant and find, say, a diary handwritten in code, could the target be compelled to decode, i.e., decrypt, the diary?"
Originally posted by Adyta
You don't have to show them where to look, but you gotta let 'em in.