To begin with, Judge Blackburn did not order Fricosu to decrypt her hard drive.
Why not? The obvious answer: because the government didn’t ask him to.
What did the government ask him to do? It asked him to order Ms. Fricosu “to produce the unencrypted contents of the computer.”
(In fact, the government asked for a writ under the All Writs Act, 28 USC 1651, requiring Ms. Fricosu to produce the unencrypted contents. Judge Blackburn cited two cases in support of his authority to enter such an order: United States v. New York Telephone Co., 434 U.S. 159, 172, 98 S.Ct. 364, 372, 54 L.Ed.2d 376 (1977), and In re Application of United States for an Order Authorizing Disclosure of Location Information of a Specified Wireless Telephone, – F.Supp.2d – , 2011 WL 3424470 at *44 (D. Md. Aug. 3, 2011) [actually 2011 WL 3423370]. Use of the All Writs Act to compel a defendant to cooperate with the government against himself appears to be novel.)
So Judge Blackburn ordered Fricosu to provide (in law, when someone is ordered to produce something, produce doesn’t mean create, but rather provide) the government with an unencrypted copy of the hard drive.
Here’s the problem: an unencrypted copy of the hard drive does not exist. Fricosu can’t produce the unencrypted drive because she doesn’t have an unencrypted drive.
“Aw c’mon now Mark,” I hear you say. “By ordering her to produce an unencrypted drive he’s ordering her—just like all the pundits say—to decrypt it.”
No. A writ is legal word-magic. Word-magic is powerful, but it has technical limits. The person on whom word-magic is cast doesn’t have to do what the sorcerer wants him to do; he has to do what the judge orders him to do. To be enforceable, an order has to be specific. If you order me to produce something that doesn’t exist, my failure to produce it can’t be punished.
Legal word-magic is like a wish to a djinn: if there are two ways to interpret it, you’re going to get the least helpful one. If you want your word-magic to be effective, you have to remove all wiggle room. If you want someone to decrypt a hard drive, order her to decrypt it.
So Fricosu, ordered to produce the unencrypted contents of the computer, could very well respond, “Can’t do it, Judge. Don’t have it.” Then Judge Blackburn, irritated (nobody likes dealing with a djinn), says, “Okay. Produce it by decrypting it in the government’s presence. Happy?”
In Boucher, the grand jury first subpoenaed a piece of paper containing the password (which presumably didn’t exist), and then changed its mind and asked that Boucher be ordered to “produce the contents of his encrypted hard drive in an unencrypted format by decrypting the drive before the grand jury.” (Mr. Boucher elected not to pursue an appeal.)
The fact that in Fricosu the government and Judge Blackburn elected not to couch the writ in terms of decrypting the hard drive is interesting and, I suspect, important. A question of framing? By phrasing the requested relief as a writ under the All Writs Act to produce the decrypted drive, rather than to decrypt the drive, does the government hope to make the fact that the decrypted drive does not currently exist disappear? To make it appear that the evidence already exists, to bring it more in line with the All Writs Act cases (though the problem of a writ directed to a defendant rather than a third party remains)? If you put it this way: assuming that the defendant has something, and that producing it will not incriminate him, can he be compelled to produce it?, the answer might be different than if you put it this way: can the defendant be compelled to create or recreate something that doesn’t exist and then produce it if producing it will not incriminate him?
What can the government can force you to create, and then use against you? Handwriting exemplar? Sure. Drawing of the crime scene? Most likely not. A bunch of computer files that no longer exist but that could easily be recreated by the defendant? A nice question, and one that I hope we’ll see addressed head-on in the near future.