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United States v. Fricosu, 841 F.Supp.2d 1232, was a United States District Court for the District of Colorado criminal case, involving a defendant who was nearly compelled to reveal an encryption password. The case was one of the first where the prosecution sought to compel a defendant to reveal incriminating knowledge despite constitutional Fifth Amendment protections against self-incrimination. Prior to this case, the analysis for Fifth Amendment protections in regards to electronic.

BACKGROUND

Defendant Ramona Fricosu was accused of operating a complex Real Estate fraud scheme defrauding banks of hundreds of thousands of dollars. While serving a search warrant, Federal Bureau of Investigation agents seized, among other things, a laptop computer which they believed contained evidence crucial to the prosecution of the case against Fricosu, but was inaccessible to the agents due to an encryption put in place by the defendant. Through recorded conversations between Fricosu and her husband and co-defendant Scott Whatcott, it was revealed that information related to the case was indeed on the laptop and the password protection system might erase the information within if not accessed properly.

SUMMARY OF CASE RESOLUTION The prosecution filed a writ pursuant to the All Writs Act, 28 U.S.C. § 1651, to compel Fricosu to provide the password or otherwise produce the contents contained in her laptop. Judge Robert E. Blackburn ruled in favor of the government and held that despite the Fifth Amendment the request under the All Writs Act was valid and Fricosu was mandated to provide her password. Judge Blackburn, however, further ordered that the government was precluded from using the act of producing the password against her in the prosecution. Fricosu subsequently plead guilty, rendering the production of the evidence unnecessary to her prosecution.

THIRD-PARTIES and IMPLICATIONS OF CASE Due to the potential implications of the ruling, civil rights organization Electric Frontier Foundation filed an amicus curiae brief in support of Fricosu. Due to the plea agreement and concomitant waiver of appeal, no higher court has reviewed the ruling leaving the issue of Fifth Amendment protections as applied to passwords or other knowledge possessed by a defendant still an open question.

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