Skip to comments.So Much For The Fifth Amendment: Man Jailed For Seven Months For Not Turning Over Password
Posted on 05/03/2016 8:45:34 AM PDT by Lorianne
The FBI recently spent more than $1 million for assistance in decrypting a device's contents. It may have overpaid. Alternatives exist, whether it's a $5 wrench or indefinite imprisonment for not helping the government with its prosecution efforts.
A Philadelphia man suspected of possessing child pornography has been in jail for seven months and counting after being found in contempt of a court order demanding that he decrypt two password-protected hard drives.
The suspect, a former Philadelphia Police Department sergeant, has not been charged with any child porn crimes. Instead, he remains indefinitely imprisoned in Philadelphia's Federal Detention Center for refusing to unlock two drives encrypted with Apple's FileVault software in a case that once again highlights the extent to which the authorities are going to crack encrypted devices. The man is to remain jailed "until such time that he fully complies" with the decryption order.
(Excerpt) Read more at techdirt.com ...
Well, it’s not testimonial and thats what the 5th protects. It’s like hair samples at arrest to get DNA.
I haven’t read the opinion but I assume they came down on the “not testimonial” argument to the 5th doesn’t apply.
Heck, who hasn't ever forgotten a password?
Make your password 200 characters long and store it on a thumb drive. “Sorry officer, the password was stored on a thumb drive which got lost in a canoe accident. I can’t open the file”
Rather perverse that a man can be jailed for refusing to cooperate with his own prosecution.
If revealing the password directly results in his felony conviction, and without it he isn’t convicted, seems it’s absolutely a 5th Amendment violation. Seems as plain an application as possible.
Hillary has used it successfully on many of her congressional appearances.
I would like to see the pervert’s hard drive decrypted, and him given a long prison term if (as one might infer from his behavior) he is guilty. However, this is not the right way to do it.
You can reasonably argue that compulsory provision of a password is not quite being “a witness against himself”, and that since there is a warrant it is not quite a violation of “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”. I still don’t like it. The Bill of Rights is not a line where the government has blanket permission to go up to that point; it’s a hard limit that cannot be crossed but also that normally should not be approached.
I am okay if they guess his password or hack the drive. Keep it as evidence until they figure out how to read it. But do not lock him up for contempt.
Ah, but there is one standard of justice for politicians with a “D” behind their name, and an entirely different standard for the rest of us . . . .
This is a search of his brain.
“I don’t recall” only works for Cankles.
The suspect, a former Philadelphia Police Department sergeant, well he should know the law.
I suspect that the actual information on that drive has nothing to do with child porn and that the child porn thing is just a red herring to get public opinion behind the FBI. More likely there’s information about cases and informants on that drive that the man doesn’t want to hand over to the FBI.
They always use the child porn thing. Always.
I’m with you on this one. No 4th violation as there is a legal warrant. However, being required to supply evidence to the prosecution does seem to violate the 5th.
It would seem that the SCOTUS ruling against being forced to supply a password for a phone could reasonably be “stretched” to cover this as well.
I can’t see how conveying the information could be determined to be anything other than testimonial.
The password is not testimony; it is a key to unlock a device. Sort of like a key to a wall safe. If a court has issued a search warrant for the wall safe and its contents, pursuant to due process, then the defendant/owner must allow the wall safe to be opened. The contents of the safe are not "testimonial" or in any other way 5th amendment protected from the duly processed warrant.
and then there’s that poor schmuck who was jailed by the feds for his film that the obozo administration falsely claimed caused the Benghazi attack that killed four Americans. I wonder when he’s going to sue the obozo and the hag for having him unjustly jailed.
“If a court has issued a search warrant ”
Ah. Safe to assume one was issued in this case as well.
On the other hand regarding electronic devices, isn’t the prevailing theory a fingerprint or other biometric can be demanded but not a password?
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