Feb. 7, 2012 at 12:59 PM ET
A Colorado woman, recently ordered by a judge to turn over her password to decrypt her hard drive, may not remember what that password is.
Last month, a federal judge ruled that Ramona Fricosu had until Feb. 21 to comply with his order to turn over her password to the decrypted hard drive so that police can view the files on it. U.S. District Court Judge Robert Blackburn previously ruled that Fricosu's defense — the Fifth Amendment's right against self-incrimination — did not apply in the case, in which Fricosu is charged with bank fraud, wire fraud and money laundering tied to a mortgage scam.
“It’s very possible to forget passwords,” Fricosu's attorney, Philip Dubois, told Wired Monday. “It’s not clear to me she was the one who set up the encryption on this drive. I don’t know if she will be able to decrypt it.”
If she can't remember the password, “The government will probably say you need to put her in jail until she breaks down and does what she is ordered to do,” Dubois said. “That will create a question of fact for the judge to resolve. If she’s unable to decrypt the disc, the court cannot hold her in contempt.”
Dubois plans to petition the U.S. Court of Appeals on the judge's ruling. The Electronic Frontier Foundation has also weighed in on the case with an amicus brief on behalf of the defendant, saying the judge's order is a violation of the Fifth Amendment. In addition, the EFF says, the government did not specify what it is looking for on Fricosu's laptop, making it seem like an "evidence-fishing trip."
The prosecutor in the case, Patricia Davies, told Wired Fricosu has not indicated in any court documents that she forgot the password.
“She has not taken that position in court,” Davis said. “When she does, we’ll figure it out.”