Friday, February 24, 2012

'Foregone conclusion' doctrine the difference between hard drive decryption rulings

You win some and you lose some. On Thursday, the 11th Circuit Court of Appeals ruled that a man called only "John Doe" wasn’t legally required to give up the password to an encrypted hard drive that "might" contain incriminating information. However, on Wednesday, the 10th U.S. Circuit Court of Appeals rejected the appeal of Ramona Fricosu, ruling she must decrypt her laptop hard drive despite a similar claim of possible incriminating data.

Fricosu is a suspect in a mortgage fraud case.  John Doe is a suspect in a child pornography case

The Electronic Frontier Foundation (EFF) filed a friend of the court brief in both cases, supporting the defendants, but only in the case of John Doe did they succeed.

It seems incongruous, but it is not. In the case of John Doe, the court said:

“We find no support in the record for the conclusion that the Government, at the time it sought to compel production, knew to any degree of particularity what, if anything, was hidden behind the encrypted wall. The Fifth Amendment protects Doe’s refusal to decrypt and produce the contents of the media devices because the act of decryption and production would be testimonial, and because the Government cannot show that the ‘foregone conclusion’ doctrine applies.”

The "foregone conclusion" doctrine applies if the authorities know that a defendant has a potentially incriminating piece of evidence, but will not produce it.

However, in the case of Fricosu, the authorities had a recording of her speaking to her co-defendant in which she mentions an incriminating file on her laptop. That evidence can be used to force Fricosu to turn over the password.

In her case, since she had already incriminated herself in the recorded conversation, refusing to decrypt the hard drive becomes an instance of withholding evidence. In that case, she can be held in contempt.

U.S. District Judge Robert Blackburn has ordered Fricosu to decrypt the laptop by month’s end.

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