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Citizens can be forced to decrypt their laptops, says judge

January 24, 2012 — 9:51am ET | By Paul Mah

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Fifth Amendment

A U.S. judge has ordered a woman to decrypt the encrypted contents of a laptop computer, or face consequences that include being in contempt of court. As reported on CNET News, the Fifth Amendment was ruled as not being a factor here. According to the judge, "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."

In this instance, the defendant, Ramona Fricosu, has been accused of being involved in a mortgage scam. A laptop found in Fricosu's possession had been encrypted with Symantec's PGP Desktop, which she has declined to decrypt. At the heart of the issue is the assertion that an American's Fifth Amendment right against self-incrimination does not extend to encryption passphrases--much as how one can be compelled to hand over the keys to a safe.

Unlike a physical key though, a defender could claim to have forgotten a passphrase. I'm not sure how Symantec PGP Desktop works, but the use of full disk encryption would leave no way for a prosecutor to even prove that a laptop has been used recently.

Indeed, Fricosu's attorney alluded to this possibility, noting that "if that's the case, then we'll report that fact to the court, and the law is fairly clear that people cannot be punished for failure to do things they are unable to do."

It is certainly too early to guess how such cases will have a bearing on the way business data should be protected. Given that backup copies of passphrases are usually stored as a precaution, I think it would be fair to say that businesses should work with the assumption that encrypted data can be decrypted at the insistence of the courts.

For more:
- check out this article at CNET News