In the Colorado case, the police had intercepted a telephone conversation in which the defendant, Ramona Fricosu, acknowledged her ownership of the laptop and alluded to the existence of incriminating documents in the encrypted portions of the hard drive. The government successfully argued that this precluded her from claiming Fifth Amendment protection, since she had already acknowledged the existence of incriminating documents in the case. The Tenth Circuit affirmed the lower court's decision Wednesday citing previous cases where courts have held that when the government already knows of the existence of specific incriminating files, compelling a suspect to produce them does not violate the Fifth Amendment's rule against self-incrimination.
In the Florida case, on the other hand, the government lacked any specific evidence about the contents of the encrypted hard drives owned by an accused child pornographer, identified only as John Doe. A forensic expert acknowledged it was theoretically possible that the drives, which were encrypted using TrueCrypt, could be completely empty. Hence, forcing the suspect to decrypt the drive would be forcing him to reveal whether any relevant documents exist, which would be inherently incriminating. The Eleventh Circuit reversed the lower court’s decision to hold Doe in contempt and ruled that forcing him to decrypt the drives would be unlawful. Relying on US v. Hubbell, it held that if the government merely suspects that an encrypted hard drive contains some incriminating documents, but lacks independent evidence for the existence of specific documents, then the owner of the hard drive is entitled to invoke the Fifth Amendment.
Francis Paolo Tiopianco, Entry #11