Is Your Password Protected By The Constitution?

Whether the Fifth Amendment right against self-incrimination is implicated when a defendant is asked to reveal a password was, until now, a theoretical question. The topic was the subject of heated geek-debates which were akin to the early Christians slugfests about how many angels could dance on the head of a pin. Two recent federal cases have finally brought the matter into the legal limelight. The arguments are academic. The practicalities are marginally meaningful. Let me tell you why.

First, the cases. In USA v Ramona Fricosu, the defendant was ordered to decrypt her encrypted hard drive. Fricosu was accused of bank fraud and the government believed there was evidence on her laptop. She fought the order on the grounds that the government cannot force her to testify against herself, arguing that revealing her password is testimonial. The government responded that a password is not testimonial. Much like ordering a blood test from a suspected drunk driver or swab of the cheek from a suspected sex offender, a password is more like a key to a lock than an admission of guilt or testimony, prosecutors theorized.