It seems that whether or not the Government can force a defendant to decrypt their hard drive for the purposes of an investigation has become a moot issue. In the case against a Colorado woman accused of mortgage fraud, Federal agents have managed to decrypt the suspect’s hard drive without her assistance.
Just last week an appeals court upheld the ruling that Ramona Fricosu would have to decrypt her hard drive so that agents could have access to the content. That ruling was made on the basis that police already had an idea of what was contained on the hard drive after intercepting a phone call where the suspect alluded to the fact that there may be incriminating data on the encrypted segments of the drive.
This week Federal agents managed to decrypt the drive without getting the password from Fricosu, making this whole legal battle a non-issue. Phillip Dubois, Fricosu’s lawyer, gave a phone interview on Wednesday in which he stated, “They must have used or found successful one of the passwords the co-defendant provided them.”
Dubois was delivered a document on Wednesday of all the information that was contained on the drive. Fricosu’s ex-husband co-defendant, Scott Whatcott, is also accused in the case and Dubois thinks he was the one who provided the password to authorities so that they could decrypt the drive.
The battle over whether or not a hard drive decryption password is protected under the Fifth Amendment will likely continue on in the coming months. The recent finding that refusing to decrypt your drive is protected under the Fifth Amendment by the 11th U.S. Circuit Court of Appeals regarding a case against a Florida man sets an interesting precedent. We’ll have to see how that decision impacts similar cases going forward.