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Fifth amendment: Never heard of it

The Obama administration says it can force you to decrypt your laptop.

24 Responses to “Fifth amendment: Never heard of it”

  1. treefroggy Says:

    Sorry, I forgot the passphrase, just like I lost the key. You open it. I’ll see you in 2055. About the same time Lanny Breuer is getting out of prison for running guns into Mexico.

  2. Nylarthotep Says:

    I don’t understand why this is still argued. The right of not having to implicate yourself is a RIGHT. I don’t see anywhere in the constitution where the government has a right to compel you to provide your information irrespective of where it exists. (or any rights at all for that matter.)

    But not being a lawyer, I guess I’m not nuanced enough to understand.

  3. Robb Allen Says:

    Odd, I use TrueCrypt. Here’s the password to the file. Yeah, you’re in it. Funny how it looks blank and you can’t see any folders. It’s almost as if you’d have to know the exact folder names in order to see what’s in there, but that’s not the case.

    Sorry guys! Guess it’s just a giant, empty encrypted file.

  4. Ellen Says:

    When I travel by plane or across borders, I think I’ll take my netbook. There isn’t *room* for anything very incriminating on a 4G SSD. And if they confiscate it, it’s years out of date and due for a replacement. Works if the TSA steals it, too.

  5. Mr Evilwrench Says:

    Easy. Encryption with two passcodes. Give it the right one, it decrypts. Give it the other one, it pretends to decrypt, while carpet bombing the data files with blank spaces or random crap. In a few seconds, the whole thing could become indecipherable. If it were uncopyable as well, say, written onto the drive in a nonstandard way that won’t read right without the right software, poof! The original self destructs, and any copies are hopelessly corrupt.

    Yes, it’s a right, but when the government is your enemy, you have to do what you have to do.

  6. Tam Says:

    How? With a pair of pliers and a blowtorch?

  7. John Smith. Says:

    I figure scotus will rule like this. You can be forced to open your laptop but any evidence in it will be inadmissible in the current case filing…(Yet admissible if the case ends up in a retrial or a wholly different case.)

    Yeah I know it sounds odd but it sounds like the recent rulings the court has been handing down.

  8. John Smith. Says:

    Damn Robb I use truecrypt too. It kicks FBI butt…

  9. Stormy Dragon Says:

    While I disgree with this policy, I don’t think you can blame it on Obama as it’s been precedent since the “act of production” doctrine was developed in Fisher v. United States (1976). This was upheld with regards to producing subpeoned documentation in United States v. Hubbell (2000) and at the district level to demands to turn over encryption passphrases in United States v. Boucher (2009, although the case started in 2006).

    The current SCOTUS position is that a demand to turn over incriminating documentation does not violate the fifth ammendment, unless the actual act of turning them over is itself incriminating. Since giving someone your passphrase does not in itself incriminate you, you can’t rely on the fifth ammendment to refuse, even if that passphrase would allow access to incriminating files.

  10. Stormy Dragon Says:

    As an example of what is meant by “the act of production being incriminating in itself” is that while the government can force you to turn over the passphrase to an encrypted drive it has in posession, it can’t do something like “give us any encryption passphrases you know” as doing so would reveal the existence of encrypted drives they don’t know about yet.

  11. chris Says:

    This could not be simpler from a Constitutional perspective.

    The point of the 5A is to grant citizens the right to not have to disclose information to the government and let it determine the extent to which it reveals illegal conduct.

  12. Davey Says:

    Stormy Dragon:
    Thanks for the clarification. Could someone use a passphrase like, “I am a Nazi pedophile” and claim 5th amendment protection in order to avoid revealing it?

  13. FatWhiteMan Says:

    Why don’t they just send it to NCIS? They have a database for everything and could just look up the encryption key or jut hack the password. :)

  14. Stormy Dragon Says:

    This could not be simpler from a Constitutional perspective.

    The point of the 5A is to grant citizens the right to not have to disclose information to the government and let it determine the extent to which it reveals illegal conduct.

    Clarence Thomas made that point in his ruling on United States v. Hubbell, but he was the only justice to question the constitutionality of the act of production doctrine itself.

  15. Jay Says:

    I’m not sure how I feel about this, as I find arguments from both sides persuasive. If you have a safe in your house, and the government has a warrant to search the safe, can you be compelled to hand over the key? It seems that you can. What about if it’s a combination lock? Can you be compelled to tell them the combination? If not, how is it different from giving over the key?

    I think the argument turns on whether the passphrase is like a physical key, or if it’s like a piece of knowledge.

  16. John Smith. Says:

    Davey.. Am not sure if that would work. Just saying what you are a criminal means very little but an actual admission to a crime you have committed would be protected…. Like who you killed and the location of the body and plus time/date…. I think that would work.

  17. CarlS Says:

    Correct me if I’m mistaken, but the 4th Amendment requires that a warrant spell out probable cause, why the searcher believes he or she has a justification to search, exactly what and where will be searched, etc, etc.

    “Give me the master key so I can determine what I’m looking for” just doesn’t cut it. and government, courts, cops, et al be damned for twisting the Bill of Rights to say otherwise.

    Always have a fallback plan. Remember the “Deadman Switch Software” that erases embarassing data when a person dies? Turn that around and release “embarassing and/or incriminating data if harassed or arrested by government.

    A la J. Edgar Hoover, Ted Kennedy, or Julian Assange.

    It worked for a lot of Soviet “businesses”.

  18. wizardpc Says:

    @Mr Evilwrench:
    See, if you did that, then they’d get you for evidence tampering or destruction of evidence or obstruction of justice or lying to investigators or whatever.

  19. Sigivald Says:

    From the link:

    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 mind, so why shouldn’t a passphrase be shielded as well?

    On the basis of the facts and the law, I tend to side with the State on this very specific question. (Though CarlS has an excellent point about warrants, which should be relevant before it gets to the point of even looking)

    Contra the civil libertarians in that quote, the “key” is not itself incriminating (or at least I can’t imagine it would be in almost any case) – it’s what the “key” is protecting that is.

    But there is no Fifth Amendment right to (as their example suggests) not give up a physical key that protects incriminating evidence; the right is solely to not be compelled to testify against oneself. The fact that they key here is words rather than metal doesn’t make it testimony. It’s still a key to further evidence, not evidence or testimony itself.

    (Jay has hit the intuitive difference the CL argument above provides, but I don’t think it’s legally compelling, for the reasons stated above; what is prohibited is compelled self-incriminating testimony, not compelled production of something that unlocks evidence, incriminating or not.

    What would the Founders say? Beats me – and I don’t think anyone else knows either.)

    Davey: Not unless he was being prosecuted for “being a Nazi Pedophile”. Which isn’t illegal. (Committing pedophilic acts is quite rightly illegal; being a pedophile [wanting to commit such acts, rather than the fact of having done so] is not criminal. And of course being a Nazi is perfectly legal.)

    “His passphrase was ‘I am a Nazi pedophile’ would be an embarrassing revelation, but is not self-incriminating in any sort of normal circumstance. I’m not sure it would be in any at all.)

  20. Mr Evilwrench Says:

    @wizardpc
    Depending on the contents, that may be preferable :)

  21. Kristopher Says:

    What if the person forgets the passphrase?

    How long can the court hold a man for forgetting a password?

  22. Tam Says:

    Stormy Dragon,

    While I disgree with this policy, I donít think you can blame it on Obama

    I don’t know that it’s so much “blaming it on Obama” as it is pointing out that this is the kind of stuff Barry campaigned against, and now he’s doing it too, just like Dubya campaigned on a “shrink government” platform and then promptly grew it instead.

  23. Tam Says:

    Kristopher,

    What if the person forgets the passphrase?

    I’m sayin’. There’s PowerBooks in the attic I couldn’t decrypt at gunpoint…

  24. perlhaqr Says:

    Mr Evilwrench Says: Easy. Encryption with two passcodes. Give it the right one, it decrypts. Give it the other one, it pretends to decrypt, while carpet bombing the data files with blank spaces or random crap. In a few seconds, the whole thing could become indecipherable.

    It’s easier than that. The passphrase one enters to decrypt one’s laptop is not, itself, the cryptographic key. The actual key is a big long string of numbers that has itself been encrypted into a key block with the passphrase. You boot up, it asks for the passkey, you enter it, it unlocks the real decryption key from the key block, and goes to town.

    Which means the simple solution is to enter a “secret” passphrase that erases the key block.

    Unfortunately, the workaround for that is even easier. They just copy the hard drive bit for bit before they ask for your key. You destroy the key block, they restore from back up and start over again. :(

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