Sophisticated encryption software has become so readily available and so effective, it's surpassed the federal government's ability to seize computers and gather evidence in criminal cases.
That development has raised questions in a mortgage and real estate fraud criminal case in U.S. District Court in Denver about whether turning over a computer password amounts to a violation of the Fifth Amendment's protection against self-incrimination.
The 10th U.S. Circuit Court of Appeals on Tuesday refused to get involved in the case involving Ramona Fricosu of Colorado Springs, who has until Monday to comply with a judge's order and turn over an unencrypted version of the hard drive of a laptop. Fricosu's criminal case must first be resolved in the lower court before her attorney can appeal the order, the appellate court ruled.
But there's a twist.
"It is possible that Ms. Fricosu has no ability to decrypt the computer, because she probably did not set up the encryption on that computer and may not know or remember the password or passphrase," her attorney, Phillip Dubois, said in a statement.
Federal prosecutors argue not allowing the government access to encrypted computers would make it impossible to prosecute crimes such as terrorism, child exploitation and drug trafficking.
A judge last month sidestepped the issue of ordering Fricosu to turn over her password, and instead ordered her to turn over an unencrypted version of the hard drive. Prosecutors had argued the password was like gaining a key to a lock box and other instances where a defendant signs documents to allow investigators to access overseas accounts.
But DuBois said that the order establishes "a very dangerous precedent that a person may be forced to assist in her prosecution in a way the law has not seen ever before."
In a procedure agreed upon by DuBois and federal prosecutors, federal agents would meet Fricosu at a designated place with the laptop, which was seized during a search warrant. Then, the government will either look away or go to another room while Fricosu enters a password on her laptop and hands it back to agents so the hard drive can be copied.
U.S. District Judge Robert E. Blackburn noted that the contents of one's mind is off limits, but ordered Fricosu to turn over an unencrypted version of her computer's hard drive, citing a Vermont case that stemmed from a 2006 border crossing search in which a man was later ordered to do the same.
The courts in that case noted that an Immigration and Customs Enforcement agent had found child pornography on the computer, but couldn't access it later because of encryption, and turning over the unencrypted hard drive added nothing to the evidence the government already had.
Blackburn also noted there were only a few cases on which to base his ruling.
In Fricosu's case, "the government has no idea what's on that computer," DuBois said. That element makes it different from other cases, he said
Fricosu and her husband, Scott Whatcott, are accused of targeting distressed homeowners in the Colorado Springs area. Prosecutors allege the two promised to pay off homeowners' mortgages, but then filed fraudulent documents in court to obtain title and sell the homes without paying the outstanding mortgage.
DuBois described Fricosu as an immigrant from Romania who has two sons, no technical expertise in computers and whose computer was encrypted with what he believed was software available on the Internet or at stores.
Encrypted computers are no longer for the technological savvy. With a few clicks of the mouse, 256-bit and 512-bit readily available encryption software makes computer hard drives almost impossible to break into, even for hackers.
"Conceptually, it is possible to break encryption," but it could take years, said Jay Bavisi of the Albuquerque-based EC-Council, a so-called "white hat" and ethical hacker group that tests network and computer security. "It can be a time consuming and resource draining exercise in an already stressed environment."
In one of the few examples of a similar case, a sheriff's detective under suspicion for improper use of a law enforcement database told investigators in King County, Wash., in 2004 that he simply forgot the password to the encrypted portion of his computer hard drive. The detective retired and the computer's hard drive was placed into storage.
"We apparently did not ever crack the code to get in," sheriff's spokeswoman Cindi West said.
The U.S. Attorney's Office declined to comment on Tuesday's appeals court decision.
The San Francisco-based Electronic Freedom Foundation has opposed the government's actions in the case because it believes easy-to-use encryption software should be used by everybody to prevent computer crimes and fraud, said Hanni Meena Fakhoury, an attorney for the foundation. The case could render those privacy protections useless, he said.
"The government is flipping that on its head and saying encryption is only good for criminals to hide what they're doing," Fakhoury said. "It's very decoder `ringish.' But this is not some sleuth criminal tool."