Beyond the log-in screen of Ramona Fricosu's laptop computer lies what federal prosecutors say could be the key evidence in the bank-fraud case against her.

There's only one problem: Prosecutors don't know her password.

Thus, in an extraordinarily rare move, prosecutors in Denver are seeking a court order forcing Fricosu to unlock the computer so that they can obtain files they would use to try to convict her and her ex-husband.

Civil-liberties groups nationwide have taken notice, saying the case tests the strength of rights against self-incrimination in a digital world. Prosecutors, meanwhile, say that allowing criminal defendants to beat search warrants simply by encrypting their computers would make it impossible to obtain evidence in an age when clues are more likely held within a hard drive than a file cabinet.

Lawyers for the government and Fricosu argued the issue for a third time in the past six months Tuesday. U.S. District Judge Robert Blackburn is expected to issue a ruling on the matter soon.

"If the government wins in this case, and they are able to force her to decrypt the laptop ... it's the erosion of the Fifth Amendment," said Hanni Fakhoury, an attorney for the Electronic Frontier Foundation, which filed a brief in support of Fricosu. "It's seeing the Fifth Amendment not keeping up with advances in technology."

Prosecutors predict a different kind of doom if they lose.

Advertisement

"Failing to compel Ms. Fricosu," Assistant U.S. Attorney Patricia Davies wrote in a court filing, "amounts to a concession to her and potential criminals (be it in child exploitation, national security, terrorism, financial crimes or drug trafficking cases) that encrypting all inculpatory digital evidence will serve to defeat the efforts of law enforcement officers ... and thus make their prosecution impossible."

Mortgage scam

Fricosu and Scott Whatcott were indicted in 2010 on charges of bank fraud connected to what prosecutors say was a complex mortgage scam in the Colorado Springs area that targeted people facing foreclosure. In one court filing, prosecutors said the scheme defrauded banks of more than $900,000.

The Fifth Amendment protects people from being forced to be a witness against themselves in a criminal proceeding. But its protections are not unlimited.

The debate, then, is about which pre-decided scenario this new situation fits into. Is a computer password like a key to a lockbox, as the government argues? Or is it akin to a combination to a safe, as Fricosu's attorneys say?

While the key is a physical thing and not protected by the Fifth Amendment, the Supreme Court has said, a combination — as the "expression of the contents of an individual's mind" — is.

If Blackburn treats Fricosu's password like a key, "the meaning of 'search warrant' will be stretched and the rights to privacy and against self-incrimination shrunk," Fricosu's attorney, Philip Dubois, wrote in a court filing.

Prosecutors, though, say they don't really care about the password itself. They say they will allow Fricosu to enter the password without their looking and won't use whatever inference could be made by Fricosu's ability to unlock the computer against her.

"The government seeks the strongbox's contents," Davies wrote in a case filing, "not the ability to open the strongbox for itself."

John Ingold: 303-954-1068 or jingold@denverpost.com