A federal judge in Denver has ruled that a bank-fraud suspect must unlock her computer for prosecutors, in a ruling that civil liberties advocates say undermines constitutional protections in a digital age.

In an order issued Monday, U.S. District Judge Robert Blackburn said requiring Ramona Fricosu to provide an unencrypted version of her laptop’s hard drive to prosecutors does not violate her rights against self-incrimination. Instead, Blackburn ruled that providing the unlocked laptop wouldn’t be self-incriminatory because it wouldn’t prove anything that the government doesn’t already know.

“[I]t is more likely than not that the computer belonged to and was used by Ms. Fricosu,” Blackburn wrote. “Accordingly, I find and conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the … laptop.”

Fricosu and her ex-husband, Scott Whatcott, were indicted in 2010 on charges of bank fraud related to a complex mortgage scam. While serving a search warrant at Fricosu’s house in Peyton, investigators seized a Toshiba laptop that they later discovered was encrypted. After hearing Fricosu and Whatcott talk about an encrypted laptop during a tape-recorded jailhouse phone call, prosecutors sought an order forcing Fricosu to cough up her password so that they could fulfill the search warrant.

Fricosu said ordering a defendant to disclose something from memory violated Fifth Amendment protections against self-incrimination. Prosecutors said allowing suspects to defeat a search warrant by simply encrypting their computer threatened their ability to collect evidence in the future.

Blackburn leaned on a ruling by a federal judge in Vermont who found that, when the existence of the information sought is a foregone conclusion, the Fifth Amendment doesn’t apply.

“That fact that (the government) does not know the specific content of any specific documents is not a barrier to production,” Blackburn wrote, in summarizing the takeaway from the Vermont case.

Fricosu’s attorney, Philip Dubois, said he intended to ask for a stay in the case to appeal Blackburn’s ruling.

“I don’t think this is the appropriate time to give up on the issue” Dubois said. “It is one of national importance.”

Indeed, civil liberties groups had closely watched the case, saying it presented a novel question over how the Fifth Amendment applies to new technology. Prosecutors had sought to avoid such a debate by allowing Fricosu to unlock her laptop privately, meaning they wouldn’t actually learn her password.

But Hanni Fakhoury, an attorney with the Electronic Frontier Foundation, said the organization believes that doesn’t matter. He said the foundation would file a supporting brief with the 10th Circuit Court of Appeals when the case gets there.

“We still think the Fifth Amendment protects the compelled disclosure of the password or the decrypted contents of the computer,” he wrote in an e-mail.

The U.S. Attorney’s office in Denver did not have a comment on the ruling.

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

