Encrypting Your Hard Drive No Longer Works Against Federal Prosecution

Illustration for article titled Encrypting Your Hard Drive No Longer Works Against Federal Prosecution

Sometimes common "street smarts" fail you. Like when you ask the guy who's selling you drugs if he's a cop. Or when you encrypt your hard drive and refuse to unlock it for prosecutors while citing the self-incriminating clause of the Fifth Amendment.


A federal court judge has just ruled that being forced to decrypt one's hard drive during prosecution does not violate the defendants's Fifth Amendment rights. The ruling stems from a case against Ramona Fricosu, who is charged with mortgage fraud. She has refused to decrypt the contents of her hard drive arguing that doing so would require her to essentially testify against herself.

Nuh-uh, said judge Robert Blackburn, citing an earlier ruling against one Sebastien Boucher. In that case, the courts decided that, while Boucher's encryption password was certainly protected, the information on his drive could be considered evidence in the case and was therefore not subject to the same liberties.

"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 his opinion today. He also cited the All Writs Act, a 1789 statute, could be invoked as well to force Fricosu's compliance.

Friscosu has until February 21 to comply or face contempt of court charges. Geez, it's getting to the point that your secrets are better left on microfilm in pumpkin patches rather than on your hard drive. [CNet via The Verge]

Image - Tatiana Popova / Shutterstock


The reason this ruling was handed down was that Fricosu was recording having admitted there was incriminating evidence on that hard drive. Ergo, the Prosecution knows where the evidence is. She is not required to divulge her password, rather she is required to produce the data she admitted to having.

The Boucher case is similar. Customs officials saw the evidence on Boucher's hard drive, they knew he had it. Boucher was never required to divulge his encryption password either, he was merely ordered by the court to produce the files the customs agents saw.

So long as you keep your damn mouth shut and NEVER let law enforcement examine the contents of an encrypted container, they're not going to be able to force you to decrypt your files just because they THINK you're hiding things there.