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US Judge: Fifth Amendment doesn't protect encrypted hard drives


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(Note by beer: The Fifth Amendment protects against abuse of government authority in a legal procedure.)

A federal judge has ruled that a Colorado woman can be compelled to decrypt her encrypted laptop so that the police can inspect it for incriminating evidence. The woman, Ramona Fricosu, is a defendant in a mortgage scam case. She had argued that the Fifth Amednment's privilege against self-incrimination protected her from having to disclose the password to her hard drive, which was encrypted using PGP Desktop.

In previous cases, judges have drawn a distinction between forcing a defendant to reveal her password and forcing her to decrypt encrypted data without disclosing the password. The courts have held that the former forces the defendant to reveal the contents of her mind, which raises Fifth Amendment issues. But Judge Robert Blackburn has now ruled that forcing a defendant to decrypt a laptop so that its contents can be inspected is little different from producing any other kind of document.

Fifth Amendment issues can also arise if acknowledging ownership of a laptop or the existence of relevant documents is itself incriminating. But the police had recorded a phone call between Fricosu and her husband in which she seemed to acknowledge ownership of the laptop and to reference incriminating material on it. Blackburn ruled that barring prosecutors from using the fact that she was able to decrypt the laptop as evidence against her in court would satisfy the Fifth Amendment concerns with compelled disclosure.

Fricosu's lawyer talked to CNET about the case and about his plans to appeal the ruling.

Dubois said that, in addition, his client may not be able to decrypt the laptop for any number of reasons. "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," he said.

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Let me take a stab at the article translation:

Due to the protection of the 5th amendment we can not force you to decrypt your drive, but due to the exemption of the 5th amendment we need you to decrypt your drive, now! :lol:

Jokes aside, I realize this article is written like a IRS tax form, and the article can be summarized as these 3 points:

- If the defendant admits ownership to a piece of evidence used in the case then the prosecutors can't use it to incriminate the defendant.

- If the defendant says he/she knows the password, then he/she is required to decrypt the drive.

- If the defendant says he/she forgot the password, then the court can't punish he/she for failure to do things they are unable to do.

EDIT: typo correction

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just like its legal to make a backup archive copy but ilelgal to use software to do it

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Simple... "Umm... what was the password again??..." lol

On another note... the program must have come with a recovery CD. All the idiots at the prosecution need to do is use this boot recovery CD, since the first 1024 sectors are not encrypted... the boot loader can't be encrypted. because windows will not boot. Then they reset the bios by shorting the pins, change the bios to boot from the CD, decrypt entire drive (retaining windows password) then install a fresh copy of windows 7 without a password, finally retrieve the data from windows.old

These guys call themselves tech experts??? The government is stupid...

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the bill or rights is suppose to be blakc and white no bs if then and that grey crap.

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