Can Your Laptop Plead the Fifth Amendment?

By Stephanie Rabiner, Esq. on July 14, 2011 | Last updated on March 21, 2019

Can the government compel you to decrypt your laptop?

Ramona Fricosu says no, which is why she's fighting federal prosecutors in Colorado who want access to her encrypted laptop, which they believe contains information relating to her alleged criminal activities.

Refusing to handover her encryption key, Fricosu is pleading the Fifth, claiming that she has a constitutional right to deny the request.

Charged with bank fraud, wire fraud, and money laundering, CNET reports that prosecutors seized an encrypted laptop from Fricosu's home that is likely to contain evidence of the alleged crimes.

Though they're not asking her to give them the password, they want her to type it in, so that they can access the laptop.

It's unclear whether encryption keys are protected under the Fifth Amendment's right against self-incrimination, as few courts have ruled specifically on this issue.

Though any decision will have important policy implications, the real issue is that the Fifth Amendment only applies to the compulsion of self-incriminating and testimonial evidence

In prior case law, the Supreme Court has defined "testimonial" as communications that, explicitly or implicitly, contain a factual assertion or disclose information.

Per the Act of Production Doctrine, "testimonial" may also include the act of producing a document, or information about documents, that contain incriminating evidence.

In the end, whether Ramona Fricosu can deny prosecutors her encryption key under the Fifth Amendment really depends on whether typing in a password is a communication or a testimonial act that leads to the disclosure of incriminating evidence.

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