Do you have to turn over your password to law enforcement?  More importantly, can you be punished by the government for failing to disclose an encryption passphrase?  The United States District Court for the District of Colorado is considering this question in the prosecution of a Colorado woman, Ramona Fricosu.

One question in this debate is whether the information in your head is analogous to a key to a safe-deposit box. Courts have required such keys to be turned over in the past, so the government argues that a passphrase or password is the same and therefore no protections should be afforded. While prosecutors in the case say they don’t actually need or want the password, they do want to force the defendant to enter it into the computer so that the government can have access to the files on the computer.

Of course, being forced to turn over your password sounds objectionable to our common sense, but there may also be legal and Constitutional concerns as well. One of the primary arguments being raised by Fricosu’s attorney is that criminal defendants can’t be required to assist the government in the decryption, decoding, or interpreting their files. This argument is based on the Fifth Amendment of the United States Constitution which  provides various protections, including the commonly known right against self-incrimination (as stated in the 5th Amendment: “nor shall [any person] be compelled in any criminal case to be a witness against himself”).  The United States Supreme Court has interpreted to rule to mean that generally a person cannot be compelled to provide testimonial communications that are incriminating.

This case obviously raises numerous philosophical issues about what the government can and should do, but the legal implications are equally as important. Whatever decision is reached by the Court may have far-reaching and long-lasting effects on technology and computer security in the court system and elsewhere. If you are in Pinellas, Pasco, Hillsborough, or anywhere in Florida and have concerns about how this case could affect you or your business, please contact attorney Brent Gordon at The Gordon Law Firm, P.A. in Oldsmar, Florida.