A Geek With Guns

Chronicling the depravities of the State.

The Fifth Amendment has Been Buried

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Last month I reported about a judge who ordered a woman to decrypt here laptop and in doing so violated her Fifth Amendment right. The decision was appealed but the state is usually very consistent in violating rights so the order to decrypt the laptop was upheld:

Colorado federal authorities seized the encrypted Toshiba laptop from defendant Ramona Fricosu in 2010 with valid court warrants while investigating alleged mortgage fraud, and demanded she decrypt it by typing in her password. In January, U.S. District Judge Robert Blackburn ordered the woman, who faces decades in prison if convicted, to decrypt the laptop by the end of February.

Her attorney appealed, hoping to win a reprieve based on the assertion that being forced to decrypt her laptop amounts to a breach of the woman’s Fifth Amendment right against compelled self-incrimination.

The 10th U.S. Circuit Court of Appeals, however, sided with the government’s contention that an appeal was not ripe — that she must be convicted or acquitted before the circuit court would entertain an appeal. Appellate courts usually frown on hearing appeals until after there’s been a verdict.

The appellate court wrote (.pdf) Wednesday that it lacks “jurisdiction to consider the resulting proceeding under any exception to our usual finality rules.”

In other words the woman is in a catch-22 situation, the 10th US Circuit Court of Appeals doesn’t want to make any ruling until after the case has concluded and the woman doesn’t want to decrypt her laptop meaning the case won’t conclude. If there is incriminating evidence on the laptop the woman should not be forced to decrypt the drive because doing so is self-incrimination. Unfortunately, according to the state, that’s irrelevant and she must possible incriminate herself in order to seek protection against self-incrimination.

The Fifth Amendment dies in the first ruling but it was buried by this most recent decision.

Written by Christopher Burg

February 27th, 2012 at 12:00 pm