A (long) but simple test

Ramona Fricosu is a Colorado woman who is accused of real state fraud. And in order to prove that accusation, the Obama DoJ has just asked a federal judge to order her to enter the password on her laptop, so as to decrypt its contents. The EFF meanwhile pointed out that this runs afoul of the Fifth Amendment:

Decrypting the data on the laptop can be, in and of itself, a testimonial act — revealing control over a computer and the files on it

As computers and encryption didn’t exist in the Eighteen century, one is left with trying to find the most accurate analogy that would have been plausible in those times; Slashdot provides a bunch of them, for both sides of the argument. However, I don’t think that’s how the Fifth Amendment applies to this case. Said amendment provides that (emphasis mine):

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 offense 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 immediately obvious way to link this provision to Fricosu’s case is through the bold part, i.e., to concede that forcing her to reveal the password could amount to self-incrimination, if the information on the laptop could be used to convict her. However, the reason to forbid self-incrimination is not to somehow sanction a defendant being able to hide valuable evidence. It’s to avoid having a “confession” tortured or otherwise coerced out of a defendant (a common practice in 16th and 17th century England). However, that’s not what’s at stake here. Let’s assume that if the laptop was not encrypted, there would no risk of self-incrimination. Then, if the laptop is encrypted, but there was a way to be absolutely certain, beyond all reasonable doubt, that the defendant was in possession of the password, she could be compelled to give it away (or, as the prosecution stressed in this case, not to tell them the password, but just to enter it when the laptop prompts for it). For in that case, anything that’s found in laptop would already be there. In other words, this could, in no way, be construed as a “confession” being coerced out of the defendant—it would be similar to the case where no encryption was present.

But herein lies the rub. You cannot be certain the laptop belongs to the defendant, and furthermore, that she knows (or has ever know) the password. She could have forgotten it (I’m a computer engineer, and this happened to me twice, back in my CS undergrad days). Or, more generally, we could be dealing with an innocent defendant, that somehow came to be in the possession of an encrypted laptop, which he does not know how to unencrypt. If the court was to order said defendant to provide the password—an order he would inevitably fail to comply—then an otherwise innocent person would end up being held in contempt of court. This is the situation the fifth is meant to prevent. The US Supreme Court ruled in Ohio v. Reiner that one of the Fifth Amendment’s basic functions is to protect innocent persons who might otherwise be ensnared by ambiguous circumstances. And this is the reason why in this case, the prosecution’s request ought to be denied.

Note: I’m not a US citizen, but I got interested in this matter because 1) it might set an important precedent to those who work in the CS field, 2) it was deceivingly non trivial, and that got me curious.