DENVER (AP) — A federal appeals court in Denver refuses to get involved in a mortgage and real estate fraud case that raises questions about whether turning over a computer password amounts to self-incrimination.
In a ruling issued Tuesday, the 10th U.S. Circuit Court of Appeals said it lacks jurisdiction because the case has not been resolved in a lower court.
That leaves Ramona Fricosu, of Colorado Springs, obligated to follow a judge’s order to turn over an unencrypted version her hard drive that requires a password for investigators to examine documents. Her attorney and civil rights groups said it would violate the Fifth Amendment.
Fricosu attorney Phillip Dubois said his client will do her best to comply with U.S. District Court Judge Robert E. Blackburn’s order. Her deadline is Monday.
“It is possible that Ms. Fricosu has no ability to decrypt the computer, because she probably did not set up the encryption on that computer and may not know or remember the password or passphrase,” Dubois said in a statement.
The U.S. Attorney’s Office declined to comment.
The San Francisco-based Electronic Freedom Foundation has filed documents in the case opposing the government’s actions. Hanni Meena Fakhoury, an attorney for the foundation, said the case sets a dangerous precedent by ordering somebody to testify against themselves and that there are other means for prosecutors to obtain a password that could include filing a civil case.
Fricosu and her husband, Scott Whatcott, are accused of targeting distressed homeowners in the Colorado Springs area, about 65 miles south of Denver.
Prosecutors allege the two promised to pay off the homeowner’s mortgage, but then filed fraudulent documents in court to obtain title and sell the homes, without paying the outstanding mortgage. Dubois described Fricosu as an immigrant from Romania who has two sons with no technical expertise in computers and whose computer is encrypted with what he believes is standard encryption software available on the Internet or at stores.
Prosecutors allege a recorded jailhouse conversation between Fricosu and her husband points to incriminating documents on Fricosu’s laptop.
Prosecutor likened the password to gaining a key to a lockbox and other instances in which a defendant signs documents to allow investigators access to overseas accounts. Prosecutors argued that failing to allow investigators access to encrypted computers would make it impossible to prosecute crimes such as child exploitation, national security, terrorism, financial crimes and drug trafficking cases.
In ordering Fricosu to turn over the unencrypted hard drive, Blackburn noted that there are very few cases involving defendants being ordered to turn over computer passwords.