According to Wired, the defendant hasn’t taken this position in court, but her attorney states that people forget their passwords all the time, especially since in this case, the encryption wasn’t set up by Fricosu herself.
If she does decide to take this approach, Judge Blackburn will have to make a call and determine if she really did forget the password, or if she is just refusing to comply with the court’s demands. In the latter case, she could be held in contempt and jailed.
“The government will probably say you need to put her in jail until she breaks down and does what she is ordered to do,” Philip Dubois, Fricosu’s attorney said.
“That will create a question of fact for the judge to resolve. If she’s unable to decrypt the disc, the court cannot hold her in contempt.”
Prosecutor Patricia Davies, the one that urged the judge to force the defendant into decrypting the drive in the first place, says that until the defendant takes this official position in court they will not do anything. If Fricosu does take this approach, then they’ll “figure it out,” Davies said.
Before his client states in court that she forgot the password to the encryption, Dubois plans to appeal the initial decision at the Denver-based 10th U.S. Circuit Court of Appeals, but this will be possible only if Judge Blackburn suspends the order to give him time to do this.
Otherwise, if the initial order remains and the accused will have to decrypt the laptop by February 21, they will not be able to make the appeal.