Should the Fifth Amendment Cover Your Encrypted Data?

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Victor Fraile / Reuters

You may have the right to remain silent, but if the ruling of a federal judge in a recent Colorado case is anything to go by, your computer doesn’t get any such protection — even if the hard drive is encrypted to prevent people such as law enforcement officers from snooping around to find incriminating evidence.

Judge Robert Blackburn has ordered Ramona Fricosu — currently under investigation for her alleged involvement in a mortgage scam — to decrypt her hard drive so that officials can look for evidence that would support the accusations she’s facing. According to Blackburn, such an order has nothing to do with the Fifth Amendment, which prevents suspects from having to incriminate themselves, writing, “I find and conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer.”

(MORE: Digital Privacy: If You’ve Done Nothing Wrong, Do You Have ‘Nothing to Hide’?)

Perhaps unsurprisingly, Fricosu’s lawyer, Phil Dubois, disagrees; he told CNet that he aims “to get a stay of execution of this order so we can file an appeal to the 10th Circuit Court of Appeals,” adding that he thinks “it’s a matter of national importance. It should not be treated as though it’s just another day in Fourth Amendment litigation.”

Dubois also hints that Fricosu may be literally unable to decrypt her laptop – perhaps she forgot her decryption password, for example – explaining, “If that’s the case, then we’ll report that fact to the court, and the law is daily clear that people cannot be punished for failure to do things they are unable to do.”

Where the law falls on this issue seems to be clear, if still somewhat open to being questioned. The U.S. Department of Justice got involved in this case last year when it ordered a judge to make exactly the ruling the Judge Blackman made, suggesting that decryption of a laptop was akin to obtaining evidence via search warrant, but legal experts have constantly debated where the issue falls on the Fifth Amendment scale of self-incrimination: Is it different if you decrypt the files yourself, or are forced to give your password to others, for example?

And barring a Supreme Court ruling, the issue could remain unresolved for quite some time. That might work out in Ramona Fricosu’s favor if something happens to the laptop to make decryption impossible in the meantime.

MORE: Twitter, Wikileaks and the Broken Market for Consumer Privacy

Graeme McMillan is a reporter at TIME. Find him on Twitter at @Graemem or on Facebook at Facebook/Graeme.McMillan. You can also continue the discussion on TIME’s Facebook page and on Twitter at @TIME.

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