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Passwords And The 5th Amendment

January 25, 2012 by  

Passwords And The 5th Amendment

U.S. District Court Judge Robert Blackburn ruled this week that a Colorado woman must give authorities the password to her personal computer so that police can view the files on it, according to CNET.

Ramona Fricosu has until Feb. 21 to comply with the order. The judge said Fricosu’s defense — the 5th Amendment’s right against self-incrimination — did not apply in the case. She is charged with bank fraud, wire fraud and money laundering. Rather than being protected against self-incrimination because the password is in her own mind, prosecutors have treated the situation as if she had a key to a safe containing stolen goods.

The Electronic Frontier Foundation, a digital civil liberties organization, filed a brief on Fricosu’s behalf. The organization argued that Fricosu should not be compelled to give up her password because it would violate her 5th Amendment right, and there was no immunity “offered for loss of this protection.”

Federal prosecutors argued that if Fricosu was not ordered to allow prosecutors to access her computer it would result in a “concession to her and potential criminals (be it in child exploitation, national security, terrorism, financial crimes or drug trafficking cases) that encrypting all inculpatory digital evidence will serve to defeat the efforts of law enforcement officers to obtain such evidence through judicially authorized search warrants, and thus make their prosecution impossible.”

Filed Under: Courts, Liberty News, Staff Reports
Sam Rolley

Staff writer Sam Rolley began a career in journalism working for a small town newspaper while seeking a B.A. in English. After learning about many of the biases present in most modern newsrooms, Rolley became determined to find a position in journalism that would allow him to combat the unsavory image that the news industry has gained. He is dedicated to seeking the truth and exposing the lies disseminated by the mainstream media at the behest of their corporate masters, special interest groups and information gatekeepers.

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  • Shaksi

    The amendments are:

    Amendment IV
    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    Amendment V
    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

    The provisions of the 4th are satisfied, if it is accepted that criminal indictment and swearing of a warrant to search under explicit warrant, supported by Oath or affirmation, particularly describing the place to be searched, and the persons or things to be seized. The breadth of interpretation may be up to a higher court.
    And as to the Fifth, it is to be a witness against oneself, …nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of liberty or property without due process of law.

    The question then remains as to breadth of interpretation. Let us split a hair here: The place to be searched is an encrypted computer hard drive, and clearly, for the purpose of supporting evidence of the crime charged. As to the 5th, my password is not the witness. The evidence on my hard drive is the witness. My papers are secure from people randomly coming into my house at military gunpoint and rummaging through my stuff, the purpose of the amendment. My papers are not secure against being taken as evidence against me in criminal court.

  • Gringo Infidel

    Federal Judge has overstepped his authority in this case by ordering the defendant to help the prosecution against her!

    This is a travesty of justice that must not be permitted to stand.

    Judge needs to go.

    • Jay

      I agree, GI! Not only does the judge need to go, the whole system is in dire need of a blood-transfusion!

  • Jay

    Seems a bit ridiculous, the notion, that evidence needed to prove someone has engaged in embezzlement, in this, our electronics age, could be safe-guarded in a personal computer. If, she is charged with bank fraud, wire fraud and money laundering, it is then safe to assume, that sufficient evidence has already been obtained, and already provided by her banking/services/electronic transaction provider, local bank, regardless if she made transactions, in person, or, on-line. So what’s with this, “warrant non-sense”, when authorities, nudge nudge, wink wink, already know/have her password, and her on-line banking activities, are laid bare? The evidence obtained through her banking institution is more then sufficient with which to charge her, so authorities need not waste their time obtaining a warrant that would demand she disclose her password! Ridiculous! Unless of-course, this isn’t about proving that a crime was committed, but something else entirely!

  • ranger hall

    You know the old saying. GIVE AN INCH and they Will Take a MILE.
    Heck this is nothing, They been doing this for MANY.MANY YEARS. AND still WE do Nothing to stop this MESS. YES folks its our fault.

  • Vicki

    And the Founders certainly understood encoded text so the 4th and 5th amendments were surely written with these tools in mind.

    Thomas Jefferson’s Cipher Wheel
    http://library.thinkquest.org/04oct/00451/president.htm

  • Vicki

    Now for another strawman case.

    Combination safe.

    Is there authority to force the suspect to divulge said combination?
    http://blogs.denverpost.com/crime/2012/01/05/why-criminals-should-always-use-combination-safes/3343/

  • Vicki

    What was the famous line from a previous President?

    Oh yes. http://www.youtube.com/watch?v=yRXFpHH0ClY

    Lets have fun with one of the straw men discussed. The suspect has a safe. The police have a warrant. The safe has a key. The key is not in the place. The suspect DOES know where the key is.

    What ruling could be applied to force the suspect to tell the police where the key is?

    • Vicki

      Another example.

      There are a bunch of files written on paper. They are encrypted by the suspect using an encryption sequence that only he (and his accomplice) knows. What are the precedents for forcing either to divulge the key? This of course is an exact match for the problem of passwords.

      • Vicki

        Some good stuff in this article about encryption and passwords of computers.
        Even more good stuff in the comments section
        http://volokh.com/2012/01/24/encrytion-and-the-fifth-amendment-right-against-self-incrimination/

      • Vicki

        While digging into this a bit I noticed the following phrase used a LOT
        “BASED ON HIS FIFTH AMENDMENT PRIVILEGE”

        Since when is a RIGHT called a privilege? I think this is intentional programming of people over time since privilege can be revoked. Rights can’t.

        This also leads credence to those who claim that the US Constitution is no longer of much value and Corporation USA is now the rule. Little statements like the immunities clause in the 14 amendment tend to support this this claim.
        “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

        Note that is a restriction on State government not Federal Government.

  • Bob Marshall

    One day those of us who have dared to speak out about government policies and the corruption we discover will have our computers hard drive examined by the FBI and other agencies. This is just the first step.

  • ranger hall

    QUESTION- What was the ITEMS covered in the ORIGINAL WARRANT.
    ?? IF there was even a warrant ISSUED.
    SUBJECT CHARGED WITH BANK FRAUD,WIRE FRAUD,MONEY LAUNDERING, And they are asking for permission from HER for her password. This seems like the POLICE do not have a good case Based on EVIDENCE, Seems like they are PUSHING in the dark for EVIDENCE, Also seems like they need to DO GOOD POLICE WORK to obtain proper EVIDENCE. Seems more like THE BIG BAD WOLF pushing Citizens around, Protection againest UNLAWFUL SEARCH and SEIZURE.

    HAVE YOU ever seen POLICE serve a Warrant, IF not just watch some of the real Police shows on TV.WHEN have you seen Police IDENTIFY Themselves and then WAIT A REASONABLE TIME FOR A RESPONSE from the occpants. WELL it goes like this POLICE, POLICE, THEN your is DOOR is broken open before the second POLICE is Spoken. This is considered REASONABLE. Wonder how many INNOCENT people have been killed by this Method. A policeman IS suppose to take RISKS, and protect innocent citizens. Today Police invade your property with very little Evidence, The strong arm method, You mess with us,You refuse and we will charge you with SOMETHING.

    NO wonder there is little respect for Policemen these days. These days they are considered Revenue Agents and Enforces for the Politicians.

  • Jon

    I thought we learned this from Nixon– never put anything on tape or paper [or computer] that you don’t want others to see. If anyone wants my secrets, they need to subpoena God.

  • Jimmy the Greek

    She needs to tell the court she well give it to them when she remembers what it is , but right now she is so up set that she can’t remember it so if they leave her be it may come back to her .

  • Trashman

    I think that some people miss the point. The federal judge has ruled that the women must reveal her password aned she says she is protected by the Constitution. Some of you say just hack the info.

    The fed doesn’t want to hack it – they want to set a precedent that they can order you to release self incriminating evidence. Nothing less.

    Remember this: 2012 Time to take out the Trash!

    • AZMarc

      You have hit the nail on the head!

  • steve

    Ya, sure my password is 1234. Didn’t work! Dam, the officers must have done something to the hard drive while it was in their custody and damaged it….. Come on, get real, no one can ‘force’ you to give up a password, unless they want to go with rubber hoses and water boarding.

  • JannyP

    Why can’t she refuse? Afterall, a Senior Officer from the U. S. Attorney’s Office recently REFUSED a subpoena for the Fast and Furious scandal. Another double standard brewing!

    • Honestly

      AMEN

  • death to non believers

    this judges ruling must give comfort to all who use “backup your system files” sites. US citizens do not have privte property anymore.

  • p

    I am sure that the feds have a hacker or three on the payroll. If they want in that computer so bad they can get in without all the theatrics. This is just a waste of the court system to say the least

    • Jibbs

      I’d just burn and smash the hard drive to pieces, then drop it in a deep lake.

  • Grayghost

    Someone posted that the courts can demand you tell them what the password is and they can hold you if you do not tell. That person is 100% wrong. The courts can demand you tell if another means of finding out what is asked can be used, but they cannot tell you to comply to tell what is in your mind. That has been supported by the Supreme Court time and time again. That is like them trying to hold you if you make a statement “In my opinion the president should be shot”. This has been supported by the Supreme Court as free thought and speech and is an opinion and not an action. They cannot make you tell them what is in your mind. This has nothing to do with whether you did something right or wrong it has to do with freedom of speech and thought. Stand your ground and this idiot judge will be over ruled by the Supreme Court and this judge should then be held in contempt of the rights of the citizens and removed from the bench on grounds of violating the rights of free speech.

  • Angel Wannabe

    We’re all guilty until proven innocent anymore. Government busibodies have turned into paranoid psychopaths, with a thirst ANY and Everything pertaining to someones life.

    Committee after committee has been created “for the protection of the people” with a new one or two added last night, at Bam Bams “State of the Ruin Address” “A Crime Unite for Fraud Protection”.
    (((Enter more Czars)))!
    It seem the only jobs Bam Bam has created so far are commmittees, and Federal spys.

    Bam Bam said last night “anyone that says Amerika is in decline or falling, doesn’t know what they’re talkin about”. Sadly he doesn’t either.

    • Warrior

      Especially beginning the sermon with “fair share” propaganda and then immediately proceeding with bs about new carve outs and tax breaks for all sorts of his favorite programs.

      This clown is just a confused pathological liar. As the camera panned around the room, I could identify 437 of the 536 present that need to be sent packing.

      • Angel Wannabe

        Warrior, Bam Bam said everything everyone wanted to hear last night, including and continuing leveling the playing field, so EVERYONE has a chance at life__Quite Frankly its always been that way!__Ya enter the race knowing full well, ya might lose. It’s all a risk.

        Pay for your own damned college education and Health Care I say!__Entitlements were already in place to help those who got into a bind!__They’re meant for a hand up, not a way of life! That’s why we’re in the mess were in, that and Capitol Cronyism!

  • oldbill

    Passwords are protected under the 4th Amendment, not the 5th Amendment.

    • dalek

      But if the information on the computer proves wrong doing, then she can plead the fifth because SPEAKING would give them evidence of the wrong doing. It doesn’t matter if the police tell you to write it down, type it, speak it, it is all the same.

      With your logic, a detective could put a laptop in front of you and tell you to confess and it is legal even if he is forcing you to do it and you could very well be innocent.

    • independant thinker

      As Buster said above they seem to be seeking seeking access for a “fishing expedition” hoping to find something/anything they can use against her they are not stating they are looking for specific information.

      • independant thinker

        Oops I hit post too soon. A fishing expedition is unconstitutional under the 4th amendment. The authorities have to spell out just what they are looking for.

  • oldbill

    It is not a 5th Amendment issue. It is a 4th Amendment issue, and the court has every right to compel her to give the password. The 5th Amendment prevents a forced confession of guilt as being admissible as evidence of guilt. It does not prevent a voluntary confession. The 4th Amendment protects property and privacy, and requires a court ordered warrant, based on reasonable evidence presented by the government body requiring the warrant. The judge has issued this order. If the woman refuses to yield the password, then she is in contempt of court, and the judge can detain her, without bond, indefinitely until she complies or he gets bored. The woman has to decide which is worse, yielding the password and being procecuted because of the information, or staying in jail, and hoping some technician doesn’t figure out her password, or some intelligent prosecutor gathers enough external evidence (which should have existed to get the warrant) and proceeds with the case based on that evidence. The computer files are simply a convenience.

    • Cliffystones

      Your argument in favor of the 4th is a good try. But a “password” is just that, a word. It’s one thing if it’s written down physically somewhere, but as long as it’s a thought in someone’s mind I still believe that individual is protected by the 5th from being forced to open their mouth and speak it. I mean what’s next, some dude with a thick German accent tying us down, pulling out a big syringe and saying “Vee Haf Vays of making you talk!”

      If they have confiscated the hard drive and have a warrant to search it, there is nothing stopping them from getting a computer forensics expert and force-decrypting the password and the drive. Sounds to me like they are either too lazy or to cheap to take that approach.

      • Moosedrool

        This is a reason to have the hard drive double encrypted with the one password causing a hard drive erasing virus to be released. Then you give them that password. I am sure that kind of technology exists.

    • fredvanliew

      If we had a court system that wasn’t nearly as corrupt as this Administration I would submit to a valid warrant. Unfortunately, law enforcement can hold “sealed” evidence and present it to a judge, who accepts what they say is in it as valid. Secret stashes of money and aircraft “on good authority” have fabricated in the most ludicrous cases, only to be accepted by the courts. Now we have a Lying Supreme Court judge Kagan who won’t recuse herself from ObamaCare ruling when she helped orchestrate the whole thing. She is required by law to recuse herself, and she refuses and now the sitting Supreme Court is backing her. What the “bleep” is going on?

    • Casey

      The Fifth Amendment is pretty broad and convers much more than freedom form testifyinng against yourself. Further, my understanding is that any verbal cooperation indicates taht you are ceding your 5th Amendment rights. Better to error on your own side.

  • Steve

    I worked as a contractor on board and aircraft carrier once for a few months. Marines came by to search fro drugs throughout the ship and they got to my luggage and said “open it up”. I told them that just because I was on the ship I had not given up my rights and that they could get a warrant. They produced a warrant and I opened up my luggage. I told there was nothing in it and there wasn’t. They wasted their time and mine.

    No way in he11 would I ever turn over a password to my encrypted files. I will suddenly forget it and they can’t hold you for something you can’t remember. Screw them and the horse they rode in on.

    • Cliffystones

      Steve,

      Being as it was an Aircraft Carrier, if they had asked me politely and said “Pretty Please” I would have allowed them to look without making a fuss. But it sounds to me like they tried to “pull rank” on you to order you to submit. In that case, in addition to what you told them, I would have reminded them of who elected their Commander-In-Chief, and to remember their place in the food chain!

    • Wumingren

      I was in the Air Force for 12 years, and every gate on military installations (which includes Navy vessels) had signs posted that said, “WARNING: Restricted Area It is unlawful to enter this area without permission of the Installation Commander (Sec. 21, Internal Security Act of 1950; 50 U.S.C. 797). While on this installation all personnel and the property under their control are subject to search. Use of deadly force authorized.” Often, there were additional statements, such as, “No Trespassing Beyond This Point” and “Photography Is Prohibited.”

      If you don’t want to be searched, do not enter a military facility or board a military vessel.

  • Michael F Douglas

    Peter thats like saying you should allow the TSA to make you strip naked just to show them that you have no bomb on you.Our rights are our rights.The government is taking them away because of people who think like you.

  • David in MA

    She should stand by the fifth amendment if only to set a precidence, force “big brother” to go to the supreme court.

  • http://www.easyinvest.co.za peter

    If she did’nt do anything wrong then what is the problem? Give them the password and laugh at their stupidity when they find out how nuts they are. If there is incriminating evidence on her hard drive then that is entirely different, is’nt it? Smoke without fire? Could be but not usually. The Feds will get her either way.

    • Howard

      “If she didn’t do anything wrong, then what is the problem?” Really? Is that your thought process? One day in our workplace we were talking about the new vehicles the military (and now police) have that can electronically peer through walls and see what you are doing in your house. One of the ladies in the office gave the same statement in a different way. She said “I don’t see what the problem is, I don’t do anything in my house I don’t want them to see.”The conversation went on to speak to things most people do fairly regularly (go to the bathroom, have sex, sit around in your underwear, pick your nose, etc). The next logical question was “do you want anyone (everyone) to be able to see you doing that”? None of these things are illegal (or even wrong to do in private) but are we absolutely sure we don’t care about our privacy? Your logic is wrong, Peter. If we don’t guard and protect our privacy from the Government “Busy-Bodies” you may find yourself thinking that you have followed Alice down the Rabbit Hole. Life will get strange when “no telling who” is looking over your shoulder. You really OK with that?

      • oldbill

        The issue should be whether or not the prosecution had sufficient evidence to justify a warrant. In the case of “scanning” private dwellings or our clothed bodies, there simply isn’t any evidence of a crime to begin with. Both of these are 4th Amendment violations. However, as long as the majority of people accept this, and no case is made to stop it by judical action, it will continue under the wool of security.

      • WickedPickle

        “The issue should be whether or not the prosecution had sufficient evidence to justify a warrant. In the case of “scanning” private dwellings or our clothed bodies”.

        And THAT’S the problem.. In this case it’s never been attempted, a precedent and the success of this (and other precedents) become law without protest from it’s citizens. Criminals do vile things in order to escape justice and they need to be singled out… By due process of law!! Did the Judge who ordered this infraction have just cause? Not in a precedent! This is nothing less than lawful brutality. I can only hope that once this idiotic law becomes main line that it will eventually turn against those who created it.. Ah, but they will have political immunity.. Too bad.

    • TML

      So by your logic, if a police officer asks if he can search a persons vehicle, and the person says ‘no’, then that person must have something to hide or have something illegal? Nonesensical reasoning that is.

      As for the case, no, she shouldn’t be ordered to give a password ‘or else’. I’ll use the safe with key analogy… What would procecution do if they had a warrant and there was no key? They would break into the safe. There are plenty of I.T. Specialists or ‘hackers’ (if you will) who can get through passworded computer security systems. If they have a warrant, then its better to do that than to force someone in violation of the 5th amendment, lest it give concessions to government to ignore such rights of all citizens, rendering the constitution null, merely because they don’t want to send a message to ‘terrorist’ that all they must do is encrypt and password protect their systems.

      • libertytrain

        I wondered that myself. Just break into it with a good hacker.

      • Buster the Anatolian

        From the little I have read about this the prosecution does not have a warrent looking for specific information as required by thye constitution but rather a general one that lets then look for anything. In other words they are going on a fishing expedition not knowing what is in the computer but hoping to find something they can use.

      • Fishing Expedition

        Ah yes, the “fishing expedition.” How they love it. This is why you have a RIGHT to remain SILENT, and keep them from catching YOU, the FISH! Of course, they are no longer “required” to read you your rights or TELL YOU that you have a right to remain silent, and you must INVOKE this right, at which time you will probably be accused of being a “wise guy” or being “un-cooperative” or “obstructing justice” or whatever else they can think of, AND you may even be arrested. Do you know that if they even threaten you verbally, it is false arrest UNLESS they have LEGITIMATE probable cause and a LEGITIMATE warrant signed by a judge, (no rubber stamp signature). It used to be said that “He who deprives you of your liberty in any way does so at his own peril.” Constitutionally, the ONLY time a police officer may LAWFULLY detain you is if he, himself witnesses you committing a FELONY, (NOT a misdemeanor), or has a good reason to believe that you are about to commit a FELONY, or you are breaching the public peace. That’s it. If Congress can just go around making up statutes that we “must follow,” what is to prevent them from making a statute which says, “Everyone must wake up at 3:00 am every morning, face the East and worship the sun god,” or something equally as stupid, as some of these statutes are? There could be no justice. This is why the goons have been called out and now it’s all about FORCE. There is no more “rule of law” UNLESS WE FORCE THE ISSUE! Judges, for the most part, ignore the real law, (the Constitution), and would have you believe that you are subject to their every whim. You are not, but you must stand up for your rights or they will be totally trampled until their is not even a grain of hope left for ever getting them back. We are just about there. The rest is up to you!

    • Angel Wannabe

      peter… ya better get with the program bud, this Admin goes after folks for simply speaking out, let alone something criminal. When they talk about how they’re going to implement a program on the net to prevent fraud, you can rest assured they’ve already been using it for quite sometime!

    • Rick USAF(ret)

      The point of the matter here is constitutional rights and limitations. Whether she’s guilty or not, I believe forcing her to reveal her password is a violation of her 4th and 5th amendment rights. If we were to allow the gov’t to get away with this then what are they going to do next. Guilty or innocent, stick to your guns lady…it’s a matter of principle.

    • Jim

      Hey Peter,
      I want to put a some cameras in your house and stream them live on the web.
      You don’t have a problem with that do you?
      If you’re not doing anything wrong, then what’s the problem.
      The we can all laugh at someones’ stupidity as you say, I just don’t know which way the laughing will go. (I can make a good assumtion though)

    • Rick Johnson

      When they came for my neighbor on the left i did nothing for it was not me. When they came for my neighbor on the right i did nothing for it was not me. When they came for the neighbor across the street i did nothing for it was not me. One day they came for me and there was no one around to help.

      You can look and say well if they have nothing to hide then open up and let them look. Soon they will knock on your door and say let me have access to you emails, bank account, friends list, family list and church directory. We WILL find something you did wrong just give us access. The founding principles of our country says we are secure in our persons from unreasonable intrusions from the government. It may mean letting a few of the guilty to be set free to keep the innocent from being over ran by an out of control government.

    • Wil

      Peter-how many Germans,in the early 30s,were doing nothing wrong and didn’t see a problem?History is,in a sense,repeating itself.

    • Ross E B

      Right! After all why bother with the Constitution now . We have only been ignoring it for about 100 years now! Who really needs freedom any way?

  • Mike

    Is anyone scared yet? “Big Brother” isn’t approaching: he is here!

    • Robert Smith

      Hmm, a folks are stolen from and you are worried about big brother?

      Must be part of the 1%

      Give a thug a gun a gun and he’ll steal from a bank.

      Give a thug a bank and he’ll steel from everyone else.

      Rob

      • Honestly

        You make no sense at all.

      • Dennis48e

        A rather common condition of Robert Smith’s.

      • USAF VET

        You have a key to your house, but if a search warrent is issued you have to let them search your home. A password is the same as a key, if the search warrent is issued for the contents of the computer, you are required to comply. So give it up and quit whining.

      • DanB

        I believe what many of us are concerned with here is called “precedent”. Once they can get your password by law, what else can they get? Would you be okay if the government could force you to give up your password to your bank account? The PIN you enter when you swipe the ATM card? Or maybe the secret code you use to lock your home safe? All of this is knowledge in your brain. And government can start mandating that you expose this information you know to incriminate you, how long before the fifth amendment disappears altogether or gets muddy and grey?

        Do I suspect this person committed a crime? Did government make the right choice? Probably. How many criminals don’t encrypt their stuff? Most of the time the government moving in for evidence like this probably would have hit pay dirt. But when they hit someone who encrypted their data like many of us should but don’t…. Is the reaction to cut their losses, abide by the laws that bind what government can and cannot do? Apparently not. Apparently the better choice is to make the muddy argument that the fifth amendment does not apply because we can use an analogy of a physical key or some other such. Personally, I think the correct answer is that government should have lost this battle. Not that she is in the right. Not because of the risk that other criminals will follow her example. I am aware of those risks. But instead what we are doing is sacrificing our freedoms. For the same freedoms that might mean a criminal goes free are the same freedoms that protect you and me from government power and abuse. Unfortunately, as much as some of you may trust government, some of us believe that it should only be given the power necessary to do its job. We realize that this may mean that some criminals go free and unpunished. If we could have a perfect justice system, no criminal would go free and no innocents would be put in jail. And while some governments have the power to put any criminal they feel necessary in jail, so too do those governments put in jail the innocents who are classified as enemies of the state. And enemies of the state is defined by those in charge. When the power shifts through revolution or other regime changes, so does the definition of enemy of the state. So why is it we want to become like these other nations? Is putting the criminals behind bars so important that we will put all our freedoms upon the alter of justice? Do we not already have enough laws on the books that we are ALL in violation of at least one law or another?

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