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Fed Judge: Forcing de-cryption does not violate 5th ammendment

bozothedeathmachine

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bozothedeathmachine
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A federal court judge has just ruled that being forced to decrypt one's hard drive during prosecution does not violate the defendants's Fifth Amendment rights.
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The argument seems to be something like this: the password to an encryption is not incriminating evidence, so no 5th amendment protection. If the data the password unlock is incriminating, then too bad for you.

Sounds like this one will hit SCOTUS....
 
bozothedeathmachine said:
Linky

The argument seems to be something like this: the password to an encryption is not incriminating evidence, so no 5th amendment protection. If the data the password unlock is incriminating, then too bad for you.

Sounds like this one will hit SCOTUS....
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I suspect the issue, if not this case, will go up for review.

If the cops have a warrant to search your house, then you can be forced to let them in whether doing so will incriminate you or not, so I'm not surprised that they see passwords the same way.
 
I agree with this decision. Passwords and decryption fall under Fourth Amendment protections, not Fifth Amendment. If you can be required to unlock a cabinet with your documents in it, being required to decrypt a file is the same thing.
 
steve s said:
What if your password is Imguiltyofmurderingbillsmith?
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Then they won't be able to force you to state your password as testimony in the case.

It doesn't stop them from getting it from you to decrypt your files, though -- just like engraving a picture of you committing murder on your key won't stop you from having to turn it over to unlock your cabinet.
 
Forcing a person to reveal a password is akin to forcing a murder suspect to confess, IMHO. You are dealing with a person's thoughts, not a physical key to unlock a cabinet, as AvalonXQ said.

As for the idea of "you can type in your password without revealing it to us", how is that different from "you don't have to tell us where you hid the body or the murder weapon, the court requires you to bring them to the police so they may examine them"?
 
SkepticScott said:
Forcing a person to reveal a password is akin to forcing a murder suspect to confess, IMHO.
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Sorry, but forcing a person to turn over evidence of a crime is perfectly legal, and not prohibited by the Fifth Amendment.

As for the idea of "you can type in your password without revealing it to us", how is that different from "you don't have to tell us where you hid the body or the murder weapon, the court requires you to bring them to the police so they may examine them"?
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Sorry, you think it's legal to hide a body and dispose of a murder weapon?

Also, how is "decrypt your files" any different from "unlock your file cabinet"? You're aware that the police can make you unlock your file cabinet, right?
 
SkepticScott said:
Forcing a person to reveal a password is akin to forcing a murder suspect to confess, IMHO. You are dealing with a person's thoughts, not a physical key to unlock a cabinet, as AvalonXQ said.

As for the idea of "you can type in your password without revealing it to us", how is that different from "you don't have to tell us where you hid the body or the murder weapon, the court requires you to bring them to the police so they may examine them"?
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How is information on a hard drive different from information in a journal? How is a lock on a hard drive different from a lock on a journal?
 
crimresearch said:
I suspect the issue, if not this case, will go up for review.

If the cops have a warrant to search your house, then you can be forced to let them in whether doing so will incriminate you or not, so I'm not surprised that they see passwords the same way.
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The difference is that if you refuse to let the police search your house, if they have a warrant they are allowed to break in.

If you refuse to provide a password, they can try to crack it but they might not be able to (or it might take quite a while). What then? (ETA: besides the contempt of court charges.)
 
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AdMan said:
The difference is that if you refuse to let the police search your house, if they have a warrant they are allowed to break in.

If you refuse to provide a password, they can try to crack it but they might not be able to (or it might take quite a while). What then?
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If you don't give them the password, you'll sit in jail on contempt charges until they get in. Force in the law doesn't mean only physical force.
 
Enter the alternate password that decrypts all the documentation of your charitable acts and kitten rescues that you were too modest to leave out in the open.

I think TrueCrypt actually has a feature like that.
 
Zax63 said:
Enter the alternate password that decrypts all the documentation of your charitable acts and kitten rescues that you were too modest to leave out in the open.

I think TrueCrypt actually has a feature like that.
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It does. The "empty space" on that first level contains the "real data", and in theory there is no way to even determine that there is anything there.
 
Yeah, the criminals will know how to keep the hd data secret.

Maybe have it set up so that if the password is not entered correctly at least once every 24 hours, the drive is automatically scrubbed clean.
 
Zax63 said:
Enter the alternate password that decrypts all the documentation of your charitable acts and kitten rescues that you were too modest to leave out in the open.

I think TrueCrypt actually has a feature like that.
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Yep. One password opens the regular volume where you would keep stuff that won't get you sent to prison (a bunch of gay porn, for example) and another opens the hidden volume where you would keep the incriminating stuff. They can't prove that the hidden volume even exists. You can even have a hidden operating system.
 
AvalonXQ said:
Sorry, but forcing a person to turn over evidence of a crime is perfectly legal, and not prohibited by the Fifth Amendment.
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Right, but there's a difference here in that the person has to take steps to clarify the evidence. The police have the hard drive.

Sorry, you think it's legal to hide a body and dispose of a murder weapon?
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Non sequitur. I never said that. I said that forcing someone to incriminate themselves was unconstitutional.

Also, how is "decrypt your files" any different from "unlock your file cabinet"? You're aware that the police can make you unlock your file cabinet, right?
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Yes, I'm very aware of it. You're missing the point.

theprestige said:
How is information on a hard drive different from information in a journal? How is a lock on a hard drive different from a lock on a journal?
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It's not. In both cases the police have the contents. You're now asking the defendant to interpret them in a manner that may be self-incriminating.

Assume the cabinet or journal contains only very abstract poetry that might indicate there was a crime and the poetry might be a confession. Do you think it would be legal for a court to order a defendant to "explain this poetry to the court in such a manner that either you confess to the crime, or convince us that it's harmless, and we're not going to believe it's harmless"? The last part is because the court won't believe you if you say that your encrypted file "is just a file of zeroes that I encrypted with a few dozen random keystrokes. I didn't try to remember them. I use it as a source of pseudo-random bits instead of rand() in these other programs I've written. I used the crypto software on my machine to do the encryption."

The police have the journal, the contents of the file cabinet, or the hard drive. It's forcing the defendant to explain those contents that I think is unconstitutional.
 
LTC8K6 said:
Yeah, the criminals will know how to keep the hd data secret.

Maybe have it set up so that if the password is not entered correctly at least once every 24 hours, the drive is automatically scrubbed clean.
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Clever ideas... if it weren't for the fact that it is a felony (with a high conviction rate) to destroy records, paper or digital when you are being investigated. I doubt that setting it up in advance would impress anyone.

I think the Grateful Dead said it best... "If you have a warrant, I guess you're gonna come in".
 
"I said that forcing someone to incriminate themselves was unconstitutional"

That's not the way the Constitution reads.

"nor shall any person... be compelled in any criminal case to be a witness against himself"

Forcing someone to make incriminating *statements* is different from forcing them to allow incriminating evidence to be found... open a door, unlock a cabinet, stand back while a search is made, etc.
 
crimresearch said:
If you don't give them the password, you'll sit in jail on contempt charges until they get in. Force in the law doesn't mean only physical force.
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How long will the judge keep you in jail for contempt, though? What if the police are simply unable to crack the password and don't have any other evidence against you (and you claim you forgot or lost the password)? IANAL, but it seems to me that a competent lawyer could get you out before too long.
 
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