January 24, 2012
Judge Orders Production of Unencrypted Laptop in Bank Fraud Case
There’s a case out of federal district court in Colorado involving a suit for bank fraud where possible evidence is on an encrypted laptop. The defendant in the case apparently has the password and isn’t telling. So far, she has defended the government request for the password as violating her Fifth Amendment rights. Yesterday the Judge overseeing her case issued an order compelling her to present the government with an unencrypted version of her laptop. The government is forbidden from using the act of production as a means of authenticating documents found on the laptop.
The Court determined that the government knows of the existence of the files, and even though it does not know the content of any specific file, that is not a barrier to production. The Court used the precedent in the Boucher case out of Vermont. That case involved child pornography on an encrypted laptop. The Boucher court ordered production of an unencrypted laptop by the defendant with the same limitations.
The few cases on point that exist and cited in the Judge’s order tend to favor disclosure despite the Fifth Amendment language against self-incrimination. The distinction seems to be the fact that by not authenticating the content through the act of production, the Fifth Amendment is not implicated. The Supreme Court has never ruled on this issue, though the few appellate decisions cited in the Judge’s order tend to agree with this principle.