Constitutional Law, Courts, Supreme Court

DOJ: Decrypt Your Files Or Go To Jail

-Submitted by David Drumm (Nal), Guest Blogger

With the Fourth Amendment a mere shadow of its former self, its time to apply the same erosional process to the Fifth Amendment. The Justice Department has asked a federal judge to compel Ramona Fricosu, charged with bank fraud, wire fraud, and money laundering related to a mortgage scam, to decrypt the files on a laptop found during a raid on her home. Fricosu now faces the cruel trilemma: perjure herself by claiming she doesn’t know the passphrase, incriminate herself by decrypting the files, or face contempt of court for refusing to decrypt.

The key phrase in the Fifth Amendment is, “[no person] shall be compelled in any criminal case to be a witness against himself.”

To get around Fricosu having to reveal the contents of her mind, the Justice Department would permit Fricosu to decrypt the files via a secure link, without actually revealing the decryption passphrase.

The first opinion to directly address the issue was handed down by Magistrate Judge Jerome Niedermeier in Vermont. From In re Boucher, Judge Jerome Niedermeier wrote that entering the password is testimonial:

Entering a password into the computer implicitly communicates facts. By entering the password Boucher would be disclosing the fact that he knows the password …

Many acts of production, such as providing fingerprints, blood samples, or voice or handwriting samples, are not protected by the Fifth Amendment, even though that production could provide a link to incriminating evidence. It is undeniable that a person possesses fingerprints, blood, and a voice, so production of those items gives no evidence of a person’s thoughts. However, the decryption of the files reveals the fact that the password is known, and that reveals the contents of a person’s mind.

One document published in the University of Chicago Legal Forum in 1996 says:

Because most users protect their private keys by memorizing passwords to them and not writing them down, access to encrypted documents would almost definitely require an individual to disclose the contents of his mind. This bars the state from compelling its production. This would force law enforcement officials to grant some form of immunity to the owners of these documents to gain access to them.

Prosecutors in the Fricosu case are refusing to grant her full immunity for whatever appears in the decrypted files.

In Maness v. Meyers, Chief Justice Burger, in the majority opinion, wrote:

This Court has always broadly construed its protection to assure that an individual is not compelled to produce evidence which later may be used against him as an accused in a criminal action.

…

The protection does not merely encompass evidence which may lead to criminal conviction, but includes information which would furnish a link in the chain of evidence that could lead to prosecution, as well as evidence which an individual reasonably believes could be used against him in a criminal prosecution.

H/T: Fourth Amendment.com, cnet News, Orin Kerr.

61 thoughts on “DOJ: Decrypt Your Files Or Go To Jail”

  2. what does tyvm:) mean? I hope you’re not saying it was no big deal. It totally screwed up like a decade of my life, my childrens’ childhood and their education, and it cost us a huge amount of money. And then David Engle burned to death in Steamboat Springs and the former property accessor wrote there are many illegal buildings in Steamboat Springs and enforcement of the regulations is lax. See Steamboat Pilot “Fire Death Questions Linger”.

    There are lots of laws supporting government — zoning, building codes, accessing and criminal procedure, but it seems like all these laws are for sale, at least in some places.

    My former neighbor Kevin Bennett recently admitted he is a convicted drug dealer. http://www.exploresteamboat.com/news/2009/sep/30/candidates_divided_financing_issue/ I’m not saying that drug dealers can’t move on with their lives but this was kept secret when he was the city council president and the police reported directly to him. He bombarded my house with fireworks and the assistant fire chief Bob Struble said that the fire department was told that their budget would be cut if they enforced the firework regulations. Not only did he bombard my house with fireworks but there was no way to stop a fire on the steep south facing hill.

    At the time I thought this all happened because a.) no one cared about my rights and b.) there was money to be made about real estate speculating. But when I lived there a number of people told me he was dealing. Maybe they were just referring to rumors. But thinking back to the numbers of people going to his shed, the one later converted to a guest house, I wonder if he was dealing then, across from my house. I did meet someone who said she was willing to testify about doing drugs at his house and I met someone else who said the police told her that they couldn’t stop him from dealing. So MAYBE the reason these bad things happened to me in Steamboat is that he was dealing to middle aged baby boomers in power and they didn’t want to risk their source of supply or they were afraid he would report them. They do have a huge medical marijuana business there now. Crimes just seem to breed more crimes.

  4. Maggie What happened is that I complained that my next door neighbor Kevin Bennett violated the zoning at 701 Princeton Ave in Steamboat Springs Colorado by building extra buildings so therefore I was criminally prosecuted by Elzabeth Wittemyer based on the signature of Bennetts’ B Wife Jane Bennett who was allowed to use police department forms. Then Wittemyer dismissed the charges but gave a public statement that I was guilty but a trial was too expensive. She benefited from this, I think, by getting a permit for a new ski area that her husband tried to sell for $20 Million. They used this as a pretext to get a restraining order on me and Jane Bennett and the police in Steamboat followed me and hunted me down and harassed me for doing perfectly legal things like going to the store and crossing the street on the crosswalk with the walk light to go to the bank while Jane Bennett watched from a hidden location. I sued them in federal court. My case was assigned to former judge Naughty Nottingham, who was having weekly prostitution service appointments but didn’t seem to be paying for them himself. Their lawyers claimed they had “immunity” but cited no law or case supporting that. Nottingham dismissed my case without writing an opinion. With no Rule 11 (c)(6) orders or finding of fraud on my part or motion hearings, he ordered me to pay the lawyers $103,000. This ruined my credit, my business and caused me to become homeless. When I tried to get a hearing from a different federal judge under Rule 60, Nottingham ordered that I should be thrown in a dungeon without a criminal charge, arraignment, or bail hearing and repeatedly threatened me and my husband. The Marshals did that for 5 months and they also made fraudulent entries into the NCIC that there was a warrant for my arrest for “obstruction of court order”, a term that isn’t in the DOJ website. I think the Marshals did this because they were being serviced by the same prostitutes as Nottingham, probably affiliated with the Denver Players.

    I have got no compensation for this at all and I am extremely angry. I am honest, truthful, and non violent but very very angry and very very bitter. I want everyone to know the terrible state of law in the United States, Colorado, and Steamboat Springs Colorado.

  6. ps sorry for the typo I am so really really angry. How can prosecutors be allowed to prosecute people without following the Rules of Criminal Procedure even in the most basic sense of having a written document signed by a prosecutor and then be allowed to continue to practice as an attorney? You know I or my son or husband could easily have ended up dead. Just so Elizabeth and Chris Wittemyer and Kevin and Jane Bennett could make money on real estate by breaking the law. Just scum in charge of government. Common criminals in my opinion.

  7. Kay,

    Yes I did only to illustrate a point….the remainder….SWOOOOOOOOSSSSSSSSSSHHHHHHHHHHHHHHHh……….

  9. Dear Anonymously Yours

    You are the one who brought up my name and my experience in which I was imprisoned without a criminal trial, without a bail hearing, without a criminal charge, without a government prosecutor and without a valid warrant. So what’s the point about buggy whips, do you think that the 4th Amendment is as out of date as buggy whips? I think that my research on the Joint Automated Booking System, the Warrant Information Network, and the Prisoner Tracking System is relevant to the discussion of the 4th Amendment. I have a pdf of the manual for the federal Joint Automated Booking System and I found that there is a facility to put in emails of interested parties but it doesn’t require any sort of confirmation from a government prosecutor. State systems in contrast do require confirmation from a government prosecutor. The State of Michigan seems to have a good system.

    Speaking of the 5th Amendment, they wanted me to confess to being a vexatious litigant as a condition of release from jail. That was impossible since they couldn’t even find a single sentence in which I lied. I verified everything under penalty of perjury so I’m sure they were all over my documents looking for contradictions. They also billed for spending 3 hours looking three my emails to try to find something in them that could be construed as a threat but they couldn’t find anything.

    Charles, I think we all need to realize that prosecutors will prosecute people that they know are innocent and that they will do that for money. We’re not just talking about re election, we are talking straight up personal financial benefit. For instance, Elizabeth Wittemyer. She wrote that she had sent the probable cause to the judge but the judge wrote he got no information. She scheduled an arraignment but she cancelled it. She just thought she could bully me into pleading guilty to disturbing the peace even though I had a perfect right to stand on the street and make truthful accusations of criminal conduct by the city council president (official misconduct). This is a crime:

    Colorado Revised Statutes 18-8-404. First degree official misconduct.
    (1) A public servant commits first degree official misconduct if, with intent to obtain a benefit for the public servant or another or maliciously to cause harm to another, he or she knowingly:
    (a) Commits an act relating to his office but constituting an unauthorized exercise of his official function; or
    (b) Refrains from performing a duty imposed upon him by law; or
    (c) Violates any statute or lawfully adopted rule or regulation relating to his office.
    (2) First degree official misconduct is a class 2 misdemeanor.

    First Degree Official Misconduct, C.R.S. 18-8-804, od what I think that Elizabeth Wittemyer did by prosecuting me without a warrant or a written statement of probable cause. I think she did it for her own personal financial benefit so that she and her husband Chris Wittemyer could make more expected profit on their development at Stagecoach. I think she should have been fired and should have been put in jail and that it is shocking that a prosecutor could get away with prosecuting someone without a warrant and without a written statement of probable cause. I hope she rots in H—.. She hurt me, she hurt my husband, she hurt my children and I think she caused the death of David Engle all so she and her husband and Kevin and Jane Bennett could make more money on real estate. And with the state of law in this country, it probably isn’t uncommon for people to actually pay under the table to have people prosecuted and to pay for restraining orders so they can get better alimony and child support settlements.

  10. By being not being familiar with the dynamics of the case, I would say that on it’s face, there is a search invloved, in which the court is asking the Defendant to assist in the search, for evidence that may then be then used against them.If applied to criminal law then, could a Court order a person accused of murder, to help find the body?

  12. Actually I think I will win eventually. I have a pending Privacy Act complaint in DDC 11-01032 with all sorts of new information I didn’t have before. Even after I filed that I got more information, that the USMS in Virginia out out a false statement that there were warrants for my arrest for “obstruction of court order”. There is no such warrant.

    Then just today I found that a few weeks ago the Circuit of the District of Columbia ruled that there doesn’t have to be racial animus for a 42 USC section 1985(2) or 1986 conspiracy claim. That was a decision made for a pro se litigant whose original claim was filed the same year as mine. No. 08-5111 DAVID M. BOWIE, APPELLANT v. CHARLES C. MADDOX, INSPECTOR GENERAL

    I don’t have cancer and I didn’t have a heart attack. No one tried to do what was good for me, they only tried to hurt me and they did hurt me really a lot. But there is no reason for me to accept their hurts. No reason to turn over and take it. I think I already protected scores of people from the same pain by my blogging about it. The idea that the courts should be putting people in jail without a criminal charge and without published procedure and that they should be denying them a hearing on the merits and taking their money without published procedure is total B.S.

    My defendants and their insurance companies have a lot of money and I want to get a good chunk of it. My expected life expectancy is probably 30 years. Even if I get old, if I got the money I could do something useful with it. My family could also prosecute my claim if I were dead so I am trying to document everything to allow them to do so.

    I also think that by defending my rights I am defending the rights of others and that if I give up there will be an expansion of people being incarcerated without a criminal charge, people’s financial assets being taken without a statutory basis or published procedure, and that city and regional planning laws will become worthless. I think that in the long term I might be contributing to world peace. If there is due process adequate to keep local government crooks in Steamboat Springs Colorado from riding rough shod over other peoples’ rights and basically taking their property, then there is more likely to be such due process in third world countries. There is no reason to believe that people in third world countries will be able to get rights that a person with a privileged background such as myself can’t get.

    I would be stupid to give up my reputation, my education, the $101,000 and the value of my claim and I am not stupid.

    Years ago I had a start up company that had problems and was losing money. I had co signed a $400,000 loan for the business and was worried about bankruptcy. But we stuck with it, spun it a different way, and eventually made about $1 Million.

    I knew someone who was successful. He advised me that successful people have almost as many problems and setbacks and make almost as many mistakes as unsuccessful people. He thought the difference between successful and unsuccessful people was persistence and fixing problems.

  15. Alright Kay,

    Now since you have lost and there really appears no probability of winning in any event…what are you doing to let it go and get on with your life?

    It is like a person who has a need for a heart attack…has one and then has it repaired….are you mad at the doctors for doing what was necessary to save you….

    If you had cancer…would you bemoan that fact and let it take away the rest of your life or enjoy what life you have left?

    It is simple and not always easy….to just let some things….GOOOOOOOOO

  16. Dear Anonymously Yours

    If you actually went through the records of my case you would find that it wasn’t so clear what I should have done even in hindsight. My complaint would have been shorter if the Tort of First Amendment Retaliation in a Non Employment Context had been recognized earlier but it wasn’t. Dan Dobbs didn’t recognize it in 2000 and neither did Causes of Action Journal. The only cases that were cited by the 10th Circuit before Hartman v. Moore were one employment case and a 1975 prisoner case. I found the tort before Hartman and cited it in 2004, using an employment case, but the 10th Circuit and District Court used unpublished procedure to stop me from presenting it in district court. Specifically, the magistrate ordered that the judge would not consider anything that I wrote that was not an objection and then the 10th Circuit ordered that I couldn’t amend my complaint or file a new complaint. I filed in a different federal court (DDC 05-01672) and stated First Amendment Retaliation as my cause of action but the Colorado court put me in jail to inhibit my pleadings. The DDC court ruled that the Colorado court involuntary dismissal caused res judicata. That is contrary to what the S.C. wrote in Semtek v. Martin Lockheed. There wasn’t an opinion or a summary judgment ruling so the defendants couldn’t point to what was decided but the DDC court ruled that res judicata wasn’t an affirmative defense and that the defendants didn’t have the burden of proof. The DDC court returned my pleadings unfiled and the DDC court wrote that I would be imprisoned if I filed there again. When I filed a motion for reconsideration in DDC, the Colorado court issued a warrant for my arrest and the 10th Circuit upheld that.

    I currently have a 7 page petition for rehearing pending in the 10th Circuit related to sanctions without published procedure. It concerns the fact that in May they ruled that Rule 11 judgments don’t need a Rule 11(c)(6) order and that in June they ruled that a restraining order doesn’t have to comply with Rule 65.

    I noticed recently for the first time that every single ruling on me in the 10th Circuit was written by the Clerk of Court and that all the rulings on other people’s petitions are actually written by a judge.

    Basically I think the 10th Circuit clerk of court wants to have me dead and is hoping that I will commit suicide or someone will murder me. She ruled that there is a federal civil contempt power, that is contrary to S.C. rulings, see Nye v. United States, 313 U. S. 33 (1941), and that civil contempt can be prosecuted by a financially interested prosecutor, that is contrary to Young v. United States ex rel. Vuitton et Fils SA, 481 US 787 – Supreme Court 1987. She ruled that there is immunity for defamation at a press conference after dismissing a criminal charge, that is contrary to Buckley v. Fitzsimmons. She ruled that Rule 41 without responsive pleadings causes res judicata, that is contrary to Semtek International v. Lockheed Martin. She ruled that a district court can adopt a disputed magistrate’s report without writing an opinion and that all claims can be dismissed with prejudice without a right to a de novo review. She made these rulings by adopting the magistrate’s report without making any attempt to summarize its findings or the basis of my objections.

    The only explanation I can think of is a hidden agenda. That is consistent with the fact that there were insurance companies behind the scene that didn’t file papers with the Colorado Division of Insurance. 10th Circuit local rules require disclosure of insurance companies but when I complained that the notices of appearance didn’t disclose the insurance and offered proof of insurance in the form of itemized attorney bills, she ruled that that was fine with her.

    I have tried writing concisely and I have tried writing comprehensively. Neither works. All that happens is that the courts basically write that I am stupid, they hate me, and I have no rights. That does not comply with the Rules of Evidence and it doesn’t comply with the Rules Enabling Act. Imprisonment based on unpublished procedure is contrary to the Administrative Procedure Act.

    My action was insured by Colorado Intergovernmental Risk Sharing Agency. They sold the City of Steamboat Springs Colorado a $5 Million government officials errors and omissions policy with a $10,000 deductible. The president of the city council, the convicted drug dealer who was my neighbor, told the city council that all he did was build a garage and remodel a garage when in fact he converted a shed to a guest house and he built a 2 story 2000 + s.f. building that he passed off as a garage, so that was an error. The city manager wrote to to myself and the city attorney and the city council that he would not have the planning staff compare the city council president’s “garage” to the ordinances because we were having a “feud”, so that was an error. The planning services director perjured herself about the ordinances and her qualifications so that was an error. The police let my neighbors’ wife initiate a criminal prosecution of me without a warrant or a probable cause hearing by signing a criminal summons form that by statute can only be signed by police officers who are witnessing a crime. She wasn’t a police officer and no police officer claimed to have witnessed a crime by me so that was an error. She claimed under penalty of perjury that I had gone on her property and scared her workers but her workers said under penalty of perjury that they had worked at her house for 100 days and the only times they saw me I was either on my own property gardening or on the street, mostly coming and going. so that was another error. The reason they claimed we had a feud is that we had complained that the city let the city council president on multiple occasions launch hundreds of full sized aerial fireworks at our house from a location 75 feet down hill — they exploded about 20 feet from our house. That violated international fireworks standards so that was an error. I also think it was an error that the police reported to a convicted drug dealer and he set their budget and controlled their promotions but his status was a secret from the public, although known to the city attorney as shown in his verified attorney bills. And I think it was an error that the City had both a full time assistant city attorney and a part time city attorney who didn’t have a contract with the city and operated a private real estate practice without any disclosure to the public about who was paying his private practice.

    The Colorado Intergovernmental Risk Sharing Agency isn’t incorporated, doesn’t file claims handling reports with the state even though that is required by state statute, and doesn’t pay income tax. Before I was imprisoned I had figured this out and asserted a whistle blower tax claim and according to their lawyer, who was also the lawyer for the city council president, that “PO’d” people.

    Mutual Insurance of Bermuda and Underwriters at Lloyds London also insured my claims. Lloyds insured the prosecutor who prosecuted me without a written statement of probable cause and issued a public statement that my neighbor was my victim but a trial would be too expensive. Based on that they got a restraining order on me, which the judge said would go away when the criminal charges were resolved but they kept that on. My neighbor lied about where his property line was and sent the police to investigate me for trespassing. He also sent the police to my son’s school. I have never touched a gun in my entire life and we don’t have one but someone spread rumors at my son’s school that I had threatened her with a gun so he was ostracized and dropped out when he was 14. I also received an email to the effect that my neighbor threatened to shoot the family of someone who wanted to buy my building lot, which had a world class view. That was a credible threat to me because there was a bullet hole through our window and I saw my neighbor with a gun on multiple occasions. The prosecutor was married to a real estate speculator and the city helped him get a permit for a new ski area which he advertised in the Wall Street Journal classifieds for $20 Million. I can prove that Lloyds insured the claim because there are verified attorney bills to Lloyds with a claim number and a policy number.

    Mutual Insurance of Bermuda advertises on-line that it sells $15 Million policies to publishers throughout North America but it doesn’t have a NAIC number and has never filed any papers with any state insurance regulator. The attorney bills itemized references to Mutual Insurance and the insurance carrier and the insurance company website listed the defense lawyer as being their president, CEO and general counsel. Their Colorado counsel filed in the 10th Circuit that there was no insurance and no other interested parties and it didn’t disclose the second law firm involved even though it billed the second law firm over $45 K for litigation against me. Those bills are on PACER see D of Colorado 02-cv-1950 document 755. In an objection the Colorado counsel admitted they had undisclosed insurance but said it didn’t matter.

    The Routt County tax rolls show that my neighbor’s guest house was built in 1950 and is in 1970 condition but it was built in 2000 and in 1999 was shown on a survey registered with the county as a shed. They don’t acknowledge the 2000 + sq foot 2 story detached building he built in 2000.

    As an adjoining property owner I had a right to enforcement of the zoning, see MONTEREY V. DEL MONTE DUNES ATMONTEREY, LTD. (97-1235) 526 U.S. 687 (1999) 95 F.3d 1422, affirmed. You may not think that zoning is important but it is a key component in real estate valuations. MIT, Harvard, Berkley, U of Colorado, U of Denver and other colleges offer masters and doctorates in city planning. The City of Steamboat tried to have David Criste’s house torn down because he violated the setback ordinance by 18 inches even though it was the fault of a nonaffiliated licensed civil engineer. The City has only 10,000 residents but it had 15 full time positions in its city planning department and in 2001 had a $400,000 planning consulting contract. The planning services director who ruled that my neighbors’ building was a garage, Wendy Schulenburg AKA Wendie Roonie made over $185 K in her next position, more than a federal judge. A police officer in Steamboat, Rich Brown and his wife Connie, were paid $10 K by their adjoining neighbor Lisa Subry, a city planner, to allow her to violate the setback ordinance by 146 square feet. So I think it was perfectly reasonable that I expected the zoning regulations to be complied with. I had a First Amendment Retaliation claim because the ONLY reason that I was criminally prosecuted, that a restraining order was issued on me, and that I was run out of town was that I had complained that my adjoining neighbor had violated the zoning by building the extra buildings. The police report shows that I stood on the street adjoining my home in the middle of the day and yelled at my neighbor, his wife, three construction workers and their building that it violated the zoning and they were violating the constitution.

  17. AY,

    Regarding, “I have seen people harassed just because they dared questioned the motivations of a government….”

    Ditto.

    With regards to the rest of it, a whole lot of truth…a whole lot of truth.

  18. MS and AN,

    I have seen people harassed just because they dared questioned the motivations of a government….Here I go and hope it does not bite me in the A&&…but when Kay S talked about her ordeal in Colorado and the Federal Court…I could hear and feel her pain….Maybe she did not initially go at it right…but she could never back down and made matters worse….it is like driving on a flat tire on the front of a vehicle….You can do a whole lot more damage than if it were just the rear….on the front not only do you have the Tire, Rim, Brake, Ball Joint, Rocker Arms, Tie Rods, shocks/struts that get damages but the frame and body…. just to name a few in auto terms….

    It was when she went on and on and then and then…you get the point….at some point it becomes a fact of life that you have to deal with…and that is what it is… a lesson in this life…and if it was Karma…hopefully she learned…

  19. Anyone who thinks that there is any privacy left is kidding him or herself. There are no secrets. None. Each one of us is pretty much an open book.

    “Beyond that I believe that in today’s world, if they want to get you they will. With me though there’s nothing to get.” -Mike Spindell

    While it’s absolutely true that “if they want to get you they will”, they seem to be going after people, even when there’s nothing to get…

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