When Ramona Fricosu’s attorney, Phil DuBois, promised to appeal a lower court’s ruling that she be forced to open encrypted files that may have incriminating data in them and assist the prosecution’s case against her, he never expected the appeals court to deny the appeal until after she had complied with the lower court’s demands.
But on Tuesday, February 21, the 10th Circuit Court of Appeals in Denver did just that. It said that the defendant in a real estate scam must provide the prosecution with the data from encrypted files on her laptop computer, possibly containing incriminating evidence against her, before they would hear the appeal. In essence, she may be proven guilty long before she has a chance to be proven innocent by invoking protections under the Fifth Amendment. Said DuBois, this establishes “a very dangerous precedent that a person may be forced to assist in her prosecution in a way the law has not seen before.”
In order for the appeal to proceed, Ramona Fricosu would be compelled to meet with federal agents who will then wait until she opens the encrypted files, copies the contents onto an unencrypted disk, and hands it over.
The judge sidestepped the real issue by claiming that she was supplying only the key to the “vault” where the information was kept rather than the encryption password that she keeps in her mind. DuBois initially claimed, to no avail, that the password in her mind was protected by the Fifth Amendment’s language: “No person … shall be … compelled in any criminal case to be a witness against himself.” The judge instead bought the prosecution’s argument that by ruling in favor of Fricosu, the court would “harm the public interest” in allowing criminals to hide their misdeeds behind an encrypted firewall.
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