The Right to Remain Encrypted: The Self-Incrimination Doctrine in the Digital Age
Soares, Nicholas, American Criminal Law Review
Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. (1)
One of the fundamental principles of liberty--that an individual may not be compelled to incriminate himself (2)--is at risk. This risk does not arise from an external source nor from a nascent disagreement with the values inherent in that principle. Rather, the venerable protection against self-incrimination guaranteed by the Fifth Amendment is in danger from a short-sighted and inflexible legal doctrine adopted by a Supreme Court that seems to have lost sight of the principles underlying the Amendment's guarantees, a doctrine that is ill-suited to cope with technological advances in areas such as encryption.
A pair of recently decided cases exemplifies the shortcomings of the current Self-Incrimination doctrine. In United States v. Fricosu, (3) the United States District Court for the District of Colorado ordered a criminal defendant to provide the Government with an unencrypted version of files from a laptop seized at her residence. When faced with a materially identical set of facts in In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, (4) the United States Court of Appeals for the Eleventh Circuit applied identical doctrine but reached the opposite result, concluding that the defendant did not need to provide the Government with an unencrypted hard drive. This Note will first show that, although the district court's decision in Fricosu contained some analytical flaws, both courts generally adhered to existing doctrine in reaching different results. Next, this Note will demonstrate how the Supreme Court's Fifth Amendment's Self-Incrimination doctrine has drifted away from the original scope of the privilege, and furthermore, how modern doctrine provides significantly less
protection against self-incrimination than did the original interpretation of the Clause. Finally, this Note will show how the decisions in Fricosu and Doe demonstrate the inability of the current doctrine to cope with technological progress, and will suggest that the current doctrinal problems--and a burgeoning circuit split--may be resolved by returning to a conception of the Clause that is in line with its original meaning.
Both Fricosu and Doe involved an attempt by the Government to force a criminal defendant to produce the contents of encrypted digital storage devices. While the criminal offense alleged in each case was quite different--real estate fraud and possession of child pornography, respectively--both cases raised substantially similar issues of self-incrimination.
A. United States v. Fricosu
In May, 2010, agents from the Federal Bureau of Investigation executed a search warrant on the Peyton, Colorado, home of Ramona Fricosu, a home Ms. Fricosu shared with her children and her mother. (5) Ms. Fricosu, along with her former husband Scott Whatcott, was subsequently indicted on various charges arising from allegedly fraudulent real estate transactions. (6) During the search, the federal agents seized several computers. (7) Among these computers was a Toshiba Satellite M305 laptop, retrieved from Ms. Fricosu's bedroom, that the Government alleged belonged to the defendant. (8) The agents were unable to thoroughly investigate the laptop because its contents were encrypted using commercially available software. (9) The Government subsequently obtained an additional warrant to search the laptop and, pursuant to the All Writs Act, (10) sought a writ from the court requiring Ms. Fricosu to produce the unencrypted contents of the computer, (11) Asserting her Fifth Amendment privilege against self-incrimination, Ms. …