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

And what if you say that you forgot the password? That might be true, indeed it has a statistically significant chance of being true. I have some zip files on my hard disk which I protected with password years ago, and now I wonder how to open them, no password that I can think of functions.

So a person forgot his password, then the police claim that he is lying and take action against him. Why do I see a connection here to a standard torture scenario. Tell us the truth! Liar, that was not the truth. Again: tell us the truth! Not again this same lie, give us your information or else...

Give us the password! You haven´t forgotten it, that´s a lie! Give us the password! No you haven´t forgotten it, to prison you go for this! The crime of forgetfulness.
 
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Sorry, but I keep thinking that this is all rather silly.

First of all, I would say that compelling someone to act in their own prosecution is a violation of the Fifth Admendment; therefore I would like the courts to further review this issue.

Second of all, if the person simply says that they do not remember the password, then I cannot determine how the authorities could prove otherwise. So unless the person himself confesses to the fact, then I fail to see how compelling a person to provide the password actually does any good in getting the desired data.

Third of all, if the person was a bit crafty, then they he could use a system that uses mulitple passwords. One password could be used to decrypt the incriminating data, a second password could be used to further encrypt/destroy the data, and a third password could be used to produce unrelated and/or false data. So again, unless the person is question is quite accomodating, then I still fail to see how compelling him to provide the password will actually help the authorities to get the data that they want.
 
AdMan said:
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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Up to 2 years has been upheld before.
 
Crossbow said:
Sorry, but I keep thinking that this is all rather silly.

First of all, I would say that compelling someone to act in their own prosecution is a violation of the Fifth Admendment; therefore I would like the courts to further review this issue.

Second of all, if the person simply says that they do not remember the password, then I cannot determine how the authorities could prove otherwise. So unless the person himself confesses to the fact, then I fail to see how compelling a person to provide the password actually does any good in getting the desired data.

Third of all, if the person was a bit crafty, then they he could use a system that uses mulitple passwords. One password could be used to decrypt the incriminating data, a second password could be used to further encrypt/destroy the data, and a third password could be used to produce unrelated and/or false data. So again, unless the person is question is quite accomodating, then I still fail to see how compelling him to provide the password will actually help the authorities to get the data that they want.
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I suspect that the courts are going to actually *read* the 5th and not use your misstatement of what it says.

People are compelled to aid in their own prosecution all the time... line ups, exemplars, as well as the things I already gave above. (Along with the actual wording)

And if you want to add obstruction and destroying evidence, that is certainly your right... along with accepting the punishment for same.
 
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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.
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Nonsense. It is directly analogous to forcing them to open a safe or file cabinet.
 
If the police had the cabinet with the journal at HQ but not the key to the cabinet it could be argued that they had the journal. Not buying it. The point is access and not interpretation. You don't have a right to prevent access.
 
phunk said:
Nonsense. It is directly analogous to forcing them to open a safe or file cabinet.
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It's also directly analogous to forcing them to tell you where the body of a murder victim is.

I don't think it's all that obvious which analogy should be considered more relevant. It looks to me like it could go either way.
 
If the cops had a warrant to search your safe I doubt they would try to force you to open it if you refused. They would just force it open. With encryption it is impossible to force it open unless you're an idiot and and use a weak password.
 
crimresearch said:
I suspect that the courts are going to actually *read* the 5th and not use your misstatement of what it says.

People are compelled to aid in their own prosecution all the time... line ups, exemplars, as well as the things I already gave above. (Along with the actual wording)

And if you want to add obstruction and destroying evidence, that is certainly your right... along with accepting the punishment for same.
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Well, I do take exception to your statements since I do have a copy of the US Constitution and I refer to it every time that I make postings about Constitutional law. And just in case you still doubt my word, then here is the relevant text:

Article V:

nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law;

And I suggest that you bring yourself upto speed on another item as, which is:

Article IV:


The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

And since I said that I would like to see the courts review this issue, then I have to say that what I said was quite correct.

As for your statements about how people are required to aid the prosecution, that is somewhat correct. While it is true that a person can be compelled to provide fingerprints, blood samples, DNA samples, handwriting samples, participate in line-ups, and so on. However, such things are allowed since they are already in the public view and a person does not have an expectation of privacy about them.

However, I submit that since things like passwords are by their very nature quite private, then a person does have an expectation of privacy about them, therefore passwords cannot be considered to be similar to fingerprints, blood types, and so on.

Finally, you may not have heard, but criminals destroy evidence all the time. And in the case of computer data, then one can destroy such an item and leave no trace of doing so. Which is another point that I was trying to make, but you missed.
 
phunk said:
Nonsense. It is directly analogous to forcing them to open a safe or file cabinet.
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Nope. They have access to everything that is there. It's just that they can't understand it. What if it was in a foreign language that they didn't speak. Could they compel you to translate it for them? No, that would be bearing witness against yourself.
 
RandFan said:
You don't have a right to prevent access.
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No one is preventing access. They have the data. You want the person to bear witness against themselves by telling the court what the data means.

Read my posts about what if it were abstract poetry or a foreign language.

(Changing my phrasing to match the 5th, as I was using it incorrectly before.)
 
The really sly hide their incriminating data in a less easily findable place than at root of C:, so the question is "where is the data?" rather than "what is the password?"
 
In the case of a physical object such as a file cabinet or a safe I thought that the options are along the lines of "Open it or we will break it open and leave you the bill to fix it.". I think that the standard there is that you cannot actively prevent them from entering once they are there with the warrant but you should not be compelled to undo any protection that you've put in place before the warrant was served and that you have no recourse for compensation if the object is damaged or destroyed even if what was inside is not incriminating.

In this case the defendant is not actively preventing the authorities from going in and is taking the stance of "Go ahead and break it open, I won't send you a bill for any damage that you cause while doing it".
 
crimresearch said:
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".
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They would presumably have no idea that it happened, though. The drive would still have "clean" data on it. There would presumably be no way to tell for sure that the drive wasn't always that way.

The ruling reflects a lack of understanding of how data can be hidden, imo.

Only amateurs would be caught with a simple encrypted hard drive, imo.
 
LTC8K6 said:
Darn shame that I can't remember the password...
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Same here

I'm curious how they can compel someone to give them the password without being absolutely sure the person knows it? I probably have hundreds of files that I either don't know the password to or that can't be opened. Photos and a few other Word docs I have on my phone that were encrypted can't be opened anymore because I had to do a hard reset.
 
steve s said:
What if your password is Imguiltyofmurderingbillsmith?

Steve S
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This should have been made clear in the OP: The warrant is for the decrypted data, not the password itself.

"What if the state installs a key-logger to catch the password?" Then that's a different case and we'll see what happens.
 
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