The actual relevent wording of the Fifth Amendmant "nor shall be compelled in any criminal case to be a witness against himself"
That seems pretty clear to me.
In this changing, computer age, the government is quite keen to reinterprit the constitution in ways that benefit the government. I however, would choose to claim my understanding of the fifth amendment... over a judge's interpritation... PERIOD. I would rather accept the jail time for contempt of court. Particularly in the case of a potential felony conviction. The most time a Federal judge can keep you in jail for contempt of court is less than five years.
I tend to support the right of government to force people to decrypt at border crossings (no different than being searched by customs). But once in the US, forget it - and how does one PROVE that, in either case, that the ‘owner’ of the computer even knows the password.
What if he ‘forgot’ it?
If a person was/is under investigation of a crime, a judge could/can issue a search warrant. If the indicted person had say, a safe deposit box or a locker in a bus station, a judge could issue a search warrant that allowed the bank to open the safe deposit box or the police to cut off the lock on the locker or seize the key under a search warrant. On the other hand, the judge as I understand the Constitution couldn’t/can’t compel the accused to open the safe deposit box herself or order her to open it herself for the police.
Unless I’m missing something, wouldn’t forcing her to decrypt her computer or surrender the password be analogous to forcing her to go the bank and open the safe deposit box or the bus station and open the locker?
Much of the discussion has been about what analogy comes closest. Prosecutors tend to view PGP passphrases as akin to someone possessing a key to a safe filled with incriminating documents. That person can, in general, be legally compelled to hand over the key. Other examples include the U.S. Supreme Court saying that defendants can be forced to provide fingerprints, blood samples, or voice recordings.
On the other hand are civil libertarians citing other Supreme Court cases that conclude Americans can't be forced to give "compelled testimonial communications" and extending the legal shield of the Fifth Amendment to encryption passphrases. Courts already have ruled that that such protection extends to the contents of a defendant's minds, the argument goes, so why shouldn't a passphrase be shielded as well?
I’m with the civil libertarians on this one.
“the password to the drive, either orally or in written form.”
Like forcing her to type it into the computer is somehow different.
My tagline says it all. Been saying it for past 5 years.
If it’s national security they can always call on NSA. To me it is clearly a fifth amendment issue.
If it’s national security they can always call on NSA. To me it is clearly a fifth amendment issue.
If a person has done something illegal...and the evidence for it is on a laptop...is that no different than a person doing something illegal and the evidence being in their house? The 5th does not protect an individual from the authorities getting a warrant and searching a house, car or business...and as far as I know...this person isn't a cylon.
So am I understanding from this thread that it is the advice of Freepers that child pornographers should just hide their evidence in an encrypted laptop with a wipe password? and that the government has no right to get the password of the laptop involved in a crime because of the FIFTH amendment?
Someone help me out here. Am I missing a point in this case?
More of the police state’s growth. I hope this ruling ends up in the dust bin along with the police GPS stunt from yesterday’s SCOTUS opinion. This is clearly a case of self-incrimination. Take the contempt hit. It has to be better than turning over something that may put you away for many, many years.
It’s disappointing that the policing authority can’t find someone in government or out who can crack the code. With enough Red Bull and candy bars you can get some college students to do the job.
This isn’t a Fifth Amendment issue. It has to do with the Fourth and the right to be secure in her papers; a hard drive is just the media they’re stored in. There’s a valid court order and it’s not unreasonable. She needs to produce the password or go to jail.
I’m not a fan of criminals, but I am a fan of the “Supreme Law of the Land”. The court got this wrong. The government should turn the laptop over to NSA and see if they can get in (they can), but the accused should not be compelled to produce incriminating evidence.
Exactly...i forgot my password your honor...I tried to remember...gave it my all...really I did...
Oh, and I used to own guns...but they all got lost in a tragic boating accident...
thats easy...two pass phrases...a “throw-down” and the real one...the first opens files anybody can look at ...
Unfortunately, IMHO, the judge here needs a “We the People” moment...and a reminder from his employers what the Fifth Amendment is all about....
Remember all the things Hillary “forgot” about Whitewater, the Rose law firm, the 900 FBI files, ad nauseum ?
Just use the Hillary Clinton defense; “I don’t recall”:
http://www.freerepublic.com/focus/f-news/1584592/posts
I haven’t read the underlying case documents or the court’s opinion, but it seems to me that if the prosecutors can make out a probable cause argument for a search warrant to search the contents of the laptop, then the defendant here can be compelled to decrypt the contents of the laptop just as she could be compelled to turn over the keys to a locked filing cabinet if prosecutors could make out a probable cause argument for claiming that incriminating evidence was contained in that locked filing cabinet.
The question here, it seems to me, is more a matter of whether the prosecutors have made out a probable cause argument that there is incriminating evidence in the laptop and not merely whether or not an individual can be forced to divulge the decryption passkey to a laptop.