Ride the Lightning
Cybersecurity and Future of Law Practice Blog
by Sharon D. Nelson Esq., President of Sensei Enterprises, Inc.
Can You Be Jailed for Forgetting Your Decryption Password?
February 14, 2012
Sure, if the judge doesn't believe that you forgot – that would make you in contempt of court and, theoretically, you could be held until you rememberd it.
This question may come in a Colorado case where Romona Fricosu is being investigated for alleged mortgage fraud. Ruling the her Fifth Amendment right against self-incrimination would not be breached, U.S. District Judge Robert Blackburn ordered her to decrypt the laptop.
The defendant has not yet said that she has forgotten her password, but her attorney has talked about how easy it is to forget passwords, perhaps running that defense up the flagpole. She has until the end of the month to decrypt the laptop – if she doesn't and says that she can't remember the password, the judge is between a rock and hard place and must try to determine (though I can't see how unless there is evidence of which I'm not aware) whether she has genuinely forgotten or is refusing to comply with the court order.
Methinks that, as these cases pile up finding that decrypting computers doesn't violate the Fifth Amendment, it is more and more likely that we'll hear "I can't remember" as an attempted "get out of jail free" card. It will be fascinating to see how judges react.
Listen to the Podcast
