-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.