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Peegee

4th Amendment + 5th Amendment (? maybe?) nonsense

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Peegee
, 12-04-2012 at 07:21 PM (10211 Views)
I'm asking the person to give me an online source so I can edit it in - but this story is probably all over USA In various fashion:

"In the US, there is a case in the courts right now. A border agent observed a US citizen viewing CP on his laptop. The cop took his computer and arrested him. But, he shut down the computer. When the cops restarted it, they learned that the files were PGP encrypted. Now, prosecutors want to force the defendant to turn over his passphrase."

Confiscating property is something the police often does, but self incriminating acts like giving away your password or encryption keys / algorithms is another thing altogether. I strongly believe that such actions should be protected by 'the constitution' (whatever that is) and that Police cannot force a person (by threatening punishment for non compliance) to incriminate themselves.

You got the hard drive. You can't prove anything. Let him go.

U mad?

Summon Raistlin. He'll agree with me (but say it more coherently)

edit: [url]https://en.wikipedia.org/wiki/United_States_v._Boucher[/url]

it looks like he gave his key away. Bah. I'm upset now. And the rest, as I am not a lawyer, is layperson babbling:

[q]Boucher accessed the Z drive of his laptop at the ICE agent's request. The ICE agent viewed the contents of some of the Z drive's files, and ascertained that they may consist of images or videos of child pornography. The Government thus knows of the existence and location of the Z drive and its files. Again providing access to the unencrypted Z drive 'adds little or nothing to the sum total of the Government's information about the existence and location of files that may contain incriminating information. Fisher, 425 U.S. at 411. Boucher's act of producing an unencrypted version of the Z drive likewise is not necessary to authenticate it. He has already admitted to possession of the computer, and provided the Government with access to the Z drive. The Government has submitted that it can link Boucher with the files on his computer without making use of his production of an unencrypted version of the Z drive, and that it will not use his act of production as evidence of authentication.[8][/q]

This seems like nonsense to me: [i]He has already admitted to possession of the computer, and provided the Government with access to the Z drive. The Government has submitted that it can link Boucher with the files on his computer without making use of his production of an unencrypted version of the Z drive, and that it will not use his act of production as evidence of authentication.[/i]

The government has gibberish data. They cannot confirm this (hence they need the decryption keys). What could the government actually punish the defendant with?

Updated 12-04-2012 at 08:16 PM by Peegee

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  1. Raistlin's Avatar
    I heard about this case a long time ago, and IIRC there is a Circuit split on the issue. I think the Fifth Amendment clearly protects a person from being forced by the government to offer information. A password or other encryption key is obviously information.

    Again, from what I recall, the government tried to draw analogies to tangible objects, such as fingerprints, blood samples, and property, all of which you can be required to hand over under certain circumstances (such as with a court order). I think those analogies fail, because none of them are purely information, as in all of them reside in the physical world outside of one's mind. Requiring someone to give over a password in a criminal case against them is far more akin to forcing them to give incriminating statements or actively assist with the government's investigation, all of which is categorically excluded under the Fifth Amendment. I wish he would have fought it longer, because I think the current Supreme Court would have probably sided with him.
  2. Bolivar's Avatar
    I think the best analogue is in John Doe, Petitioner v. United States 487 U.S. 201. In the dissent, Justice Stevens said you can compel a defendant to turn over a key, but you can't force him to reveal a combination to a safe, because that would be testimony (the expression of the contents of one's mind). The majority actually agreed with this concept, but distinguished the case at issue. So while it's not concrete precedent, there is some Supreme Court reasoning that one could draw on.

    I'm not sure if that helps Boucher, particularly because I read the lower court already used a similar argument in its reasoning. The password itself is not incriminating unless it led to the uncovering of incriminating evidence. However, that ship has sailed. The police already knew which files contained CP, where they were located on the drive, and the defendant already admitted to ownership of the computer. The furnishing of a password wouldn't help the government discover more incriminating evidence (a judge could restrict them from using itfor that purpose), it would only allow them to process already-discovered evidence through procedure. Furthermore, they weren't asking for the password, but to have Boucher enter it himself in front of a grand jury. I'm not sure if the act itself could be testimony; it doesn't prove anything except ownership, which he had already admitted to.
  3. Raistlin's Avatar
    It still compels information from a defendant to aid in the case against him. It doesn't matter what the government "already knew"; the Fifth Amendment does not care what the police or prosecutor already "knows" exists. If the police had already seen pictures, but the defendant had subsequently hid them in a rented storage unit, the defendant could not be compelled to offer the information where the storage unit is. I recognize that the analogy is not directly on-point, but I couldn't think of a better one.

    Besides, what would be the punishment for failing to comply? Contempt and jail time? How ludicrous would it be if the government could force you to give over information to help put you in prison, or else it will put you in prison?
  4. Peegee's Avatar
    :D
    I ran into an update where the requirement to either unlock the hard drive or to provide the key was stayed. So this is still ongoing.

    Regardless, I think it's important, if you appreciate this sort of thing, to make it as difficult for police to incriminate you as possible. You can encrypt your smart phones (requires a more complex password though) and your hard drives can be encrypted using built-in software. Depending on how paranoid you are (really valid point and i'm impressed by your thinking.), this might be good things to look into.