Is this a violation of the Fifth Amendment?

www.eff.org...

San Francisco - The Electronic Frontier Foundation (EFF) urged a federal court in Colorado today to block the government's attempt to force a woman to enter a password into an encrypted laptop, arguing in an amicus brief that it would violate her Fifth Amendment privilege against self-incrimination.

Can you be forced to be a witness against yourself by giving up your password? I think that everyone who is every asked to give up their password should plead the fifth. There is a reason that Amendment was created. The burden of proof is on the government, not you.

Even if you are ever questioned that their is encryption on your computer, just deny it and plead the fifth. They cant force you to give up something that does not exist. Always plead the fifth even if they ask you if the sky is blue and it is a yes or no question.

Originally posted by THE_PROFESSIONAL
www.eff.org...

San Francisco - The Electronic Frontier Foundation (EFF) urged a federal court in Colorado today to block the government's attempt to force a woman to enter a password into an encrypted laptop, arguing in an amicus brief that it would violate her Fifth Amendment privilege against self-incrimination.

Can you be forced to be a witness against yourself by giving up your password? I think that everyone who is every asked to give up their password should plead the fifth. There is a reason that Amendment was created. The burden of proof is on the government, not you.

Under the 5th Amendment, you cannot be compelled to incriminate yourself by releasing a password. You can be held in contempt if you do not do so, however. Which is completely effed up.

/TOA

reply to post by THE_PROFESSIONAL


That's a good one you found there and it's got me stumped. I did a quick search for precedent and didn't find any similar to this case.

I honestly don't know. Let me look up some more stuff before I delve into this.

reply to post by The Old American


What if you deny that you are responsible for encrypting? Then the courts are in violation as they must come up with proof that you do actually know the password.

Example: your son borrows your computer, puts encryption on it. Five years later joins the Taliban, now your computer is subject to search and you do not know the password. They will still hold you in contempt?

By exercising the fifth you retain plausible deniability. The very existence of a key/password is not known by you and therefore the govt has no case.

From the cases i've found it seems the judges have been siding with the defendant and saying that it does indeed violate their fifth amendment rights.

However, it is a two edged sword. If they do know the password and refuse to give it they can be held responsible for lying under oath and contempt of court. So it seems you are correct in saying that it's better just to say you don't know the password but I don't know how well that would fly.

It also seems that it's not that difficult for them to break through most encryptions however that may also play into the judges sentencing if it's proven you knew the password and wouldn't turn it over.

reply to post by THE_PROFESSIONAL



Could create a lot of conflict if they are hell bent you did have the password, when you really do not.

The 5th might assist to protect you from the allegation, but it will not stop harrasement and the grief caused by the allegation.

reply to post by kro32


It is actually even better to deny that you even encrypted or owned that said computer because they have to prove that you know the existence of a key/password. How can they force you to give up something that you have no knowledge of You have to stay one step ahead when answering such questions:

Them: "Do you know the password"
You: Plead the fifth
Them: did you encrypt
You: plead fifth

Now their situation has become two fold. They must prove that you know the existence of the password, then they must prove that you actually know the actual password. Plausible deniability is your friend.

So their job becomes 1) Prove that you know a password exists and 2)Prove that you know the password.

Oh Kro, they cant break my password lol: it is 45 characters, upper, lower and alpha numeric.

Originally posted by THE_PROFESSIONAL
reply to post by The Old American

 

What if you deny that you are responsible for encrypting? Then the courts are in violation as they must come up with proof that you do actually know the password.

Example: your son borrows your computer, puts encryption on it. Five years later joins the Taliban, now your computer is subject to search and you do not know the password. They will still hold you in contempt?

By exercising the fifth you retain plausible deniability. The very existence of a key/password is not known by you and therefore the govt has no case.

edit on 12-7-2011 by THE_PROFESSIONAL because: (no reason given)

If you truly don't know the password, and state so, they can't legally do anything to you. If you do not know it, pleading the 5th will just hurt you because they can hold you in contempt until you either release the password, or your attorney successfully argues that you're being held unlawfully. Might as well tell them you don't know it.

/TOA

Originally posted by kro32

It also seems that it's not that difficult for them to break through most encryptions however that may also play into the judges sentencing if it's proven you knew the password and wouldn't turn it over.

It depends what then encryption method is. None are unbreakable, but we're talking years in breaking one password. This is why I think that eventually the SCOTUS will rule that compelling passwords from people doesn't violate the 5th Amendment. As encryption algorithms get more sophisticated the thugs will need to find more nefarious ways to get at your information. If they just go ahead and invalidate the law itself, problem solved.

/TOA

Yea I don't know anything about encryption or how difficult or easy it is so can't comment any further in regards to that.

Great case to bring up though...have to give you a rare flag for this one.

reply to post by The Old American


While none are unbreakable; there are a lot of people (me included) that use top of the line stuff that has been tried and true; but like you said they can just toss the fifth and this SCOTUS can try to make it useless. This amendment may be just as valuable as the second amendment especially we are in an information age.

Rules are as follows and read carefully before responding or rebutting :

Scenario 1 :
If it is your wholly owned laptop whereas it is registered to you and no one else and the isp bill is in your name no entity has the legal right to demand that you submit a password. The you have a expectation of privacy.

Scenario 2 :
If the device is issued to you by your employer and the device is in their name and have it encrypted to work with only their isp and the isp is in their name yes they can demand that you submit your password. Any owner of any device can however dictate what sites you visit on your personal time. You here have no expectation of privacy.

Scenario 3:
If you are on your wholly owned device and are using your employers isp and internet programs to connect to the web they can demand that you submit your password. The way to get around this is to not use any personal device on your employers time or to use their servers while on the clock.

If your device however is being used by your kid then you can demand from your kid that they issue you the password that they themselves put on their as the system is registered to you and the bill for the isp is in your name.

Ownership of the device is final law and the definition of a device is a laptop, desktop, tablet, handheld, smartphone or blackberry.

reply to post by TheImmaculateD1


But being imprisoned itself is a stressful event and a person can forget their password under duress.

Originally posted by TheImmaculateD1
Rules are as follows and read carefully before responding or rebutting :

Scenario 1 :
If it is your wholly owned laptop whereas it is registered to you and no one else and the isp bill is in your name no entity has the legal right to demand that you submit a password.

Scenario 2 :
If the device is issued to you by your employer and the device is in their name and have it encrypted to work with only their isp and the isp is in their name yes they can demand that you submit your password. Any owner of any device can however dictate what sites you visit on your personal time.

Scenario 3:
If you are on your wholly owned device and are using your employers isp and internet programs to connect to the web they can demand that you submit your password. The way to get around this is to not use any personal device on your employers time or to use their servers while on the clock.

If your device however is being used by your kid then you can demand from your kid that they issue you the password that they themselves put on their as the system is registered to you and the bill for the isp is in your name.

Ownership of the device is final law and the definition of a device is a laptop, desktop, tablet, handheld, smartphone or blackberry.

edit on 12-7-2011 by TheImmaculateD1 because: (no reason given)

1 & 2 are absolute. I should've mentioned 2, duh. 3, however, is where it gets interesting. You can be compelled to supply your password for using their service, but you can't be to supply a password to access the laptop, which is where it gets murky: what if all they want is your browsing habits? You're required to give up that password, but to get to it you have to be compelled to give up your laptop password, to get to the password they can have but....

I believe I just divided by zero.

/TOA

reply to post by The Old American


1 and 2 are clearcut black and white while 3 is a gray area.

I am glad I do not live in the UK:

Two convicted for refusal to decrypt data

www.theregister.co.uk...

Ok so lets say it is your computer and they ask for your password and you say you plead the fifth.

Key Disclosure Law:
en.wikipedia.org...

United States There is currently no law regarding key disclosure in the United States, but the federal case United States v. Boucher may be influential as case law. In this case, a man's laptop was inspected by customs agents and child pornography was discovered. The device was seized and powered-down, at which point disk encryption technology made the evidence unavailable. The judge argued that since the content had already been seen by the customs agents, Boucher's encryption password "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."[18]

en.wikipedia.org...

"Compelling Boucher to enter the password forces him to produce evidence that could be used to incriminate him. Producing the password, as if it were a key to a locked container, forces Boucher to produce the contents of his laptop. The act of producing even unprivileged evidence can have communicative aspects itself and may be “testimonial” and entitled to Fifth Amendment protection. United States v. Doe, 465 U.S. 605, 612 (1984) [hereinafter Doe I] (“Although Case 2:06-mj-00091-jjn Document 35-2 Filed 11/29/2007 Page 7 of 17 8 the contents of a document may not be privileged, the act of producing the document may be.”). An act is testimonial when the act entails implicit statements of fact, such as admitting that evidence exists, is authentic, or is within a suspect’s control. Doe v. United States, 487 U.S. 201, 209 (1988) [hereinafter Doe II]. The privilege against selfincrimination protects a suspect from being compelled to disclose any knowledge he has, or to speak his guilt. Id. at 210-11. The suspect may not be put in the “cruel trilemma” of choosing between self-accusation, perjury, or contempt. Id. at 212."

volokh.com...

Originally posted by THE_PROFESSIONAL
I am glad I do not live in the UK:

Two convicted for refusal to decrypt data

www.theregister.co.uk...

Ok so lets say it is your computer and they ask for your password and you say you plead the fifth.

Key Disclosure Law:
en.wikipedia.org...

United States There is currently no law regarding key disclosure in the United States, but the federal case United States v. Boucher may be influential as case law. In this case, a man's laptop was inspected by customs agents and child pornography was discovered. The device was seized and powered-down, at which point disk encryption technology made the evidence unavailable. The judge argued that since the content had already been seen by the customs agents, Boucher's encryption password "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."[18]

en.wikipedia.org...

edit on 12-7-2011 by THE_PROFESSIONAL because: (no reason given)

Ask for a lawyer and zip your lips!

Originally posted by THE_PROFESSIONAL
I am glad I do not live in the UK:

Two convicted for refusal to decrypt data

www.theregister.co.uk...

Ok so lets say it is your computer and they ask for your password and you say you do not remember. What do they do then?

edit on 12-7-2011 by THE_PROFESSIONAL because: (no reason given)

In the U.S. they can hold you for 24 without charging you. After that, not remembering is the same as not knowing.

Remember, this is all assuming the people trying to get this information are doing everything by the book. Unfortunately ATS is in a vacuum. In the real world they can try to come up with all sorts of things to get you to give them a password, and if any of those ways are illegal you had better hope their is some record of it (yeah, right).

/TOA

Originally posted by The Old American

Originally posted by THE_PROFESSIONAL
I am glad I do not live in the UK:

Two convicted for refusal to decrypt data

www.theregister.co.uk...

Ok so lets say it is your computer and they ask for your password and you say you do not remember. What do they do then?

edit on 12-7-2011 by THE_PROFESSIONAL because: (no reason given)

In the U.S. they can hold you for 24 without charging you. After that, not remembering is the same as not knowing.

Remember, this is all assuming the people trying to get this information are doing everything by the book. Unfortunately ATS is in a vacuum. In the real world they can try to come up with all sorts of things to get you to give them a password, and if any of those ways are illegal you had better hope their is some record of it (yeah, right).

/TOA

If detained Stateside and is a non national security item they can hold you for 24 hours without charge but if your item is infringing upon national security they can hold you then for up to 96 hours without charge. Regardless of either situation ask for a lawyer the second you entre the interrogation room and zip your trap.

reply to post by TheImmaculateD1


That is the best way. Ask a lawyer and keep shut. Plasible deniability is the best method. They have to prove that you have brainwaves. Pretend to be in a comatose state the whole time. Get a medical evaluation. It is up to the state to prove that you know the existence of a password

Very interesting case read here:

volokh.com...

Fifth amendment has been granted in US vs Boucher