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View Full Version : Compelling production of a password, revisited


Bricker
07-18-2011, 09:48 AM
In this GQ thread (http://boards.straightdope.com/sdmb/showthread.php?t=605956"), among others, we discussed the question of the government requiring a person to provide the password to unencrypt a hard drive that contains (presumably) incriminating information about himself.

There's no directly applicable precedent, but in In Re Grand Jury Subpoena to Boucher, a Vermont federal district court required a man to unlock his system (interestingly, they did not require him to reveal the password, but simply to provide the government with an unlocked version of his hard drive). They did not use the fact that he knew the password against him, but they did use the revealed contents against him.

Now Colorado has a similar case. Ramona Fricosu is accused of particpating in various fraudulent real estate and mortgage transactions. Pursuant to a valid warrant, the government searched her home and seized a laptop computer; pursuant to a second, specific warrant, they searched the laptop's hard drive.

But there they were stymied, because the laptop's owner had set up the drive as an encrypted volume, and despite trying, the government was unable to break the password.

So the government sought a court order to compel Ms. Fricosu to provide the government an unencrypted version of the documents. They point to established case law that says in essence that the government, if possessing a valid search warrant for a locked safe, can compel the owner to provide the safe key.

She replies with Justice Stevens' poetic dissent in Doe v. US, 487 U.S. 201 (1988):

A defendant can be compelled to produce material evidence that is incriminating. Fingerprints, blood samples, voice exemplars, handwriting specimens, or other items of physical evidence may be extracted from a defendant against his will. But can he be compelled to use his mind to assist the prosecution in convicting him of a crime? I think not. He may in some cases be forced to surrender a key to a strongbox containing incriminating documents, but I do not believe he can be compelled to reveal the combination to his wall safe - by word or deed.

Of course, that reasoning was in the dissent, not the majority opinion, which did in fact compel John Doe to sign releases authorizing his foreign banks to provide information about him.

In any event, returning to Fricosu's dilemma, her attorney has promised to appeal an adverse decision, so it seems likely we will get a precedent-setting opinion on the issue here.

Will the law compel a criminal defendant to provide the government with the unencrypted version of an encrypted laptop, if the government can then use that content (if not the fact that she knew if) against her?

Really Not All That Bright
07-18-2011, 09:57 AM
Can defendants be compelled to disclose the location of things they've hidden? No. Instead, the government has to go find the things they've hidden. I think that's more analogous since we're talking about information rather than a physical object.

ETA: That is not to say that I think it's unreasonable to apply the safe key analogy instead.

Acid Lamp
07-18-2011, 10:05 AM
I'm not a legal eagle; can I play too or is this strictly a technical law interpretation thread?

Really Not All That Bright
07-18-2011, 10:09 AM
There is no such thing as technical law in cases of first impression. It's more about logical reasoning than law, provided there isn't an obviously analogous ruling to apply.

I guess Doe would be an obvious analogy for some people, but the rules for physical evidence are always quite different from those for thoughts.

Really Not All That Bright
07-18-2011, 10:13 AM
Bricker, didn't Boucher go the other way?
Since the government is trying to compel the production
of the password itself, the foregone conclusion doctrine
cannot apply. The password is not a physical thing. If
Boucher knows the password, it only exists in his mind.
This information is unlike a document, to which the foregone
conclusion doctrine usually applies, and unlike any physical
evidence the government could already know of. It is pure
testimonial production rather than physical evidence having
testimonial aspects. Compelling Boucher to produce the
password compels him to display the contents of his mind to
incriminate himself.

Acid Lamp
07-18-2011, 10:15 AM
There is no such thing as technical law in cases of first impression. It's more about logical reasoning than law, provided there isn't an obviously analogous ruling to apply.

I guess Doe would be an obvious analogy for some people, but the rules for physical evidence are always quite different from those for thoughts.

Alright then.

I would reason that compelling a defendant to provide a password or an unencrypted volume is a violation of self incrimination. The government has the right to seize and search whatever they may find. They have their own experts and resources to accomplish this task and may use whatever they find against the defendant. I see no reason why they should be allowed to compel the accused to provide them with further access to anything. If they cannot get the job done, then tough. While they might be able to compel someone to provide a key to a safe, there is nothing preventing the defendant from replying that he lost it, or threw it in the river, or whatever. Presumably the next step would be to hire a safe cracker. If that attempt fails and they have to cut their way in and ruin the documents in the process, tough luck. This feels the same to me.

Saint Cad
07-18-2011, 10:34 AM
A question I asked in the previous thread that did not get answered is:
I have 2 passwords on my drive, "secret" that unecrypts the drive and "password" that slags the contents. I tell the police (or under their direction use) "password" and thereby destroy the hard drive. Have I commited a crime?

jk1245
07-18-2011, 10:35 AM
As an aside to cases like this, what are the gubmint's options if your reply to their request for password is "I forgot / don't know"?

How do they prove that you know and are just holding out on them? I guess if it's your laptop they can assume you know the contents of it, but that's not necessarily the case.

Has anyone ever tried going down that path when asked for their password by an investigator?

Really Not All That Bright
07-18-2011, 10:35 AM
WAG: depends on whether they have already executed the warrant and are in custody and control of your drive.

Acid Lamp
07-18-2011, 10:40 AM
WAG: depends on whether they have already executed the warrant and are in custody and control of your drive.

Can you be dinged for destruction evidence that hasn't even been cataloged yet though? If so, that would seem to indicate that the law equates electronic files and paper documents.

Bricker
07-18-2011, 10:41 AM
Bricker, didn't Boucher go the other way?

Are you reading Boucher I or Boucher II ?

Bricker
07-18-2011, 10:43 AM
I'm not a legal eagle; can I play too or is this strictly a technical law interpretation thread?

Join the party. Not only is this almost a case of first impression (three district court rulings, two one way and one another) with no federal circuit precedent set, it's also a classic case of technology outstripping the law. We're talking about strongbox keys and safe combinations, without either being a perfect analogy.

CPomeroy
07-18-2011, 10:44 AM
Even if they can compel you to reveal the password, is there a limit as to how they can carry this out? Could they potentially jail you on a contempt charge in perpetuity until you gave them the password? If not, seems like a reasonable action would be to weigh the relative penalties for failing to reveal the password to those for the crime you were originally accused of.

On a related note, can they use the fact that you are willing to go to jail to avoid revealing the password as evidence of guilt of the original crime?

Bricker
07-18-2011, 10:47 AM
Alright then.

I would reason that compelling a defendant to provide a password or an unencrypted volume is a violation of self incrimination. The government has the right to seize and search whatever they may find. They have their own experts and resources to accomplish this task and may use whatever they find against the defendant. I see no reason why they should be allowed to compel the accused to provide them with further access to anything. If they cannot get the job done, then tough. While they might be able to compel someone to provide a key to a safe, there is nothing preventing the defendant from replying that he lost it, or threw it in the river, or whatever. Presumably the next step would be to hire a safe cracker. If that attempt fails and they have to cut their way in and ruin the documents in the process, tough luck. This feels the same to me.

Just to fill you in on how the key case might then proceed, though, the judge is entitled to hold the witness in contempt if he fails to provide the key... and while of course he may claim to have thrown it in the river, the judge is entitled to assess the credibility of that statement, and toss him in jail if he feels that claim is false. And unlike actually being convicted of a crime, theoretically the judge can keep the witness in jail for an indeterminate period of time, the idea being that the witness may purge himself of the contempt at any time and thus he holds the key to his own jail cell.

Bricker
07-18-2011, 10:48 AM
A question I asked in the previous thread that did not get answered is:
I have 2 passwords on my drive, "secret" that unecrypts the drive and "password" that slags the contents. I tell the police (or under their direction use) "password" and thereby destroy the hard drive. Have I commited a crime?

Yes, just the same crime as being properly served with a subpoena to produce paper records and burning them instead.

Bricker
07-18-2011, 10:49 AM
Even if they can compel you to reveal the password, is there a limit as to how they can carry this out? Could they potentially jail you on a contempt charge in perpetuity until you gave them the password? If not, seems like a reasonable action would be to weigh the relative penalties for failing to reveal the password to those for the crime you were originally accused of.

Answered above.


On a related note, can they use the fact that you are willing to go to jail to avoid revealing the password as evidence of guilt of the original crime?

Almost certainly not.

In fact, if they compel you to decrypt the drivem they cannot even use the fact that you knew the decryption password against you.

But of course they can use the actual, now-decrypted contents against you.

Acid Lamp
07-18-2011, 11:12 AM
Just to fill you in on how the key case might then proceed, though, the judge is entitled to hold the witness in contempt if he fails to provide the key... and while of course he may claim to have thrown it in the river, the judge is entitled to assess the credibility of that statement, and toss him in jail if he feels that claim is false. And unlike actually being convicted of a crime, theoretically the judge can keep the witness in jail for an indeterminate period of time, the idea being that the witness may purge himself of the contempt at any time and thus he holds the key to his own jail cell.

I'm on my phone at work so I'll have to keep my next few posts brief. Theoretically the judge cannot hold you longer than the trial though correct? If it proceeds without the contents and you are acquitted then they would have to let you go at that point?

Really Not All That Bright
07-18-2011, 11:33 AM
Are you reading Boucher I or Boucher II ?
I didn't know there were two, and now I can't find that opinion.

Bryan Ekers
07-18-2011, 11:48 AM
I figure once the government has seized a computer and it is wholly in their possession and control, I don't have the right or the obligation to operate it until it is wholly returned to my possession and control. Thus, they can't seize machinery and later come to me with "how do you work this thing?" Too bad, suckers. I'm not coming to your house to show you how to play with the toys that you took from me.

Bricker
07-18-2011, 11:54 AM
I didn't know there were two, and now I can't find that opinion.

Boucher I, November 2007, Magistrate Judge's opinion, which quashed the subpoena. (In re Grand Jury Subpoena to Sebastien Boucher, 2:06-mj-91, 2007 WL 4246473 (District Court, D. Vt., Nov. 29, 2007)

Government appealed, and the federal district court overruled the magistrate judge and ordered Boucher to provide the government with an unencrypted drive. (In re Grand Jury Subpoena to Sebastien Boucher, 2009 WL 424718 (District Court, D. Vt. Feb. 29, 2009)

I can give you a PACER ref if you have PACER access.

Bricker
07-18-2011, 11:56 AM
I'm on my phone at work so I'll have to keep my next few posts brief. Theoretically the judge cannot hold you longer than the trial though correct? If it proceeds without the contents and you are acquitted then they would have to let you go at that point?

Perhaps, but in this case, no trial has commenced. The issue is compliance with a search warrant and subpoena.

robertliguori
07-18-2011, 12:07 PM
A question I asked in the previous thread that did not get answered is:
I have 2 passwords on my drive, "secret" that unecrypts the drive and "password" that slags the contents. I tell the police (or under their direction use) "password" and thereby destroy the hard drive. Have I commited a crime?

Plus, they don't need to crack your encryption to image your hard drive, so you wouldn't be destroying much.

Another issue with technology marching on is that products such as TrueCrypt let you set up multiple encrypted partitions and only make some visible depending on the password entered. It's trivial to set up a basic partition and a hidden partition, and never have the two touch each other, so that you can decrypt a totally innocuous image of your hard drive.

Duckster
07-18-2011, 12:17 PM
Perhaps the creators of TrueCrypt (http://www.truecrypt.org/) had this in mind when they implemented a hidden encrypted volume (http://www.truecrypt.org/hiddenvolume) within the outer encrypted volume. If compelled to reveal the password of the encrypted volume, all an investigator would find may be some innocuous information important to the owner, but not critically important to the owner nor the investigator.

So what happens to you? If you've complied with a court order to reveal the password to an encrypted volume, does the order's authority now stop because the actual data is contained within a hidden encrypted volume whose existence is known only to the owner, but could be suspected by a knowledgeable investigator, only because they found nothing in the outer encrypted volume?

Really Not All That Bright
07-18-2011, 12:21 PM
I can give you a PACER ref if you have PACER access.
Nope. Just WL and Lexis.

Bricker
07-18-2011, 12:27 PM
Nope. Just WL and Lexis.

OK, then, Boucher I is: 2007 WL 4246473
Boucher II is: 2009 WL 424718

Bricker
07-18-2011, 12:33 PM
So what happens to you? If you've complied with a court order to reveal the password to an encrypted volume, does the order's authority now stop because the actual data is contained within a hidden encrypted volume whose existence is known only to the owner, but could be suspected by a knowledgeable investigator, only because they found nothing in the outer encrypted volume?

To find you guilty of contempt, the court must weigh the evidence. While it's entitled to assign its own determinations of your credibility to your testimony, it has to rely on something in the record.

So let's imagine the two cases we've discussed (Boucher and Fricosu) int he context of a TrueCrypt hidden volume.

In Boucher's case, the border agent had already seen images of child porn on the drive. If Boucher purported to comply with the court's order, but revealed a drive with no such images, the court could credit the border agent's testimony and conclude that Boucher was deliberately failing to comply with the order. In other words, the court could point to support in the record for its belief that there was a second, unrevealed storage area.

In Fricosu's case, the government has no concrete knowledge of what is on the drive they seek. If Fricosu gave up the password, and revealed only innocent material, the court could not rely on any other testimony to contradict that finding.

So I would say the answer to your question depends on the facts in the case.

Chronos
07-18-2011, 03:04 PM
To be clear: There is precedent for the defendant being required to produce a key for a safe. Is there precedent for the defendant being required to produce a combination for a safe? A combination for a safe and a password for an encrypted drive seem fairly closely analogous, to me.

Martin Hyde
07-18-2011, 04:32 PM
I would be interested in what precedent there is with safe combinations as well.

Ostensibly I can imagine law enforcement demanding you to open a locked safe, but I also imagine that if you refused they would just call in a specialist who could either crack the safe or (more likely) use force to drill the safe out safely without destroying whatever is inside.

Even the mightiest safe is not invulnerable. However, certain types of encryption, if their implementation does not contain any holes or means of getting to the data "around" the encryption, are essentially entirely unbreakable using existing technology.

Raza
07-18-2011, 04:48 PM
How about this analogy: Defendant Raza is being investigated for running a gambling operation. A search warrant turned up a book, but the contents are coded, and government attempts to break the code have been unsuccessful.

Can the government/court require that the defendant reveal the code or otherwise provide a decrypted version?

I would think this circumstance has arisen before.

Acid Lamp
07-18-2011, 05:26 PM
How about this analogy: Defendant Raza is being investigated for running a gambling operation. A search warrant turned up a book, but the contents are coded, and government attempts to break the code have been unsuccessful.

Can the government/court require that the defendant reveal the code or otherwise provide a decrypted version?

I would think this circumstance has arisen before.

That is a perfect analogy.

Bryan Ekers
07-18-2011, 05:40 PM
How about this analogy: Defendant Raza is being investigated for running a gambling operation. A search warrant turned up a book, but the contents are coded, and government attempts to break the code have been unsuccessful.

Can the government/court require that the defendant reveal the code or otherwise provide a decrypted version?

I would think this circumstance has arisen before.

Sure. Sean Connery resorted to the dense legalistic reasoning of sticking a gun in the mouth of one of "Raza's" accomplices (the guy was dead already, but "Raza" didn't know that) and pulled the trigger.

Got him a favourable judgement and an Academy Award.

Bricker
07-19-2011, 09:51 AM
Interestingly enough, there's a case in my back yard, the Fourth Circuit, decided last week, that touches on a tangential issue. What happens if you learn you're being investigated, and decide to destroy your hard drive before the FBI can seize it?

Turns out you can be convicted of destroying evidence with intent to impede, obstruct, or influence a federal investigation, as prohibited by 18 USC 1519.

A child porn investigation pointed federal agents to one Brian Hicks of North Carolina, whose computer had apparently been linked to downloads of child porn. Hicks was not at home when they visited, and after learning of their visit he destroyed his hard drive. He admitted as much to the agents when they returned.

He was prosecuted under the Sarbanes-Oxley Act, which he complains was intended to apply to financial investigations only. But the court points out that the language is unambiguous, and prohibits:

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States ...

So the government had no evidence to convict him of child porn, but sent him up for destroying his hard drive, which contained child porn before he destroyed it.

Bone
07-19-2011, 02:07 PM
So the government had no evidence to convict him of child porn, but sent him up for destroying his hard drive, which contained child porn before he destroyed it.

Not trying to defend people with child porn, but I don't think you can conclude that the hard drive actually contained child porn - beyond the two thumbnails they were able to recover I suppose.

The real downfall of Hicks was that he admitted he destroyed the hard drive. I think that ruling was incredibly stupid. What if you're contacted by police who think you may have some hidden, unknown to you criminal activity going on in your storage shed and they ask to look inside. You thoughtfully refuse because they do not have a warrant and after the police leave you decide to look in your shed. In looking in your shed, you remove old debris and generally give the place a good cleaning being careful to investigate any possible criminal activity. You find none and consider yourself in the clear. Now you're guilty of destroying evidence. That's stupid.

I think a reasonable defense to the password issue is "I don't recall". That seems to work for congressional testimony. Could you be held in contempt for that response?

Bricker
07-19-2011, 02:26 PM
Not trying to defend people with child porn, but I don't think you can conclude that the hard drive actually contained child porn - beyond the two thumbnails they were able to recover I suppose.


He admitted it.


I think a reasonable defense to the password issue is "I don't recall". That seems to work for congressional testimony. Could you be held in contempt for that response?

Just to fill you in on how the key case might then proceed, though, the judge is entitled to hold the witness in contempt if he fails to provide the key... and while of course he may claim to have thrown it in the river, the judge is entitled to assess the credibility of that statement, and toss him in jail if he feels that claim is false. And unlike actually being convicted of a crime, theoretically the judge can keep the witness in jail for an indeterminate period of time, the idea being that the witness may purge himself of the contempt at any time and thus he holds the key to his own jail cell.

Bone
07-19-2011, 02:41 PM
I was under the impression that Hicks denied the possession and since he was not charged with possession I missed the fact that he admitted possession in his testimony. Chalk another strike against him for talking to the police.

Your example of contempt was based on claiming a key was thrown in a river - a tangible object not a facet of memory. I think it would be bad policy to hold out a judge to be a mind reader and give them authority to penalize a person based on that fictional power. What defense would a person have who in fact forgot their password?

Chronos
07-19-2011, 05:41 PM
I expect that the prosecution would respond to an argument of "I forgot my password" by arguing that the defendant had repeatedly and recently accessed the encrypted information, thus showing that he knew the password then, and casting doubt on the claim that it was forgotten.

I'm still curious about the combination safe question.

Bricker
07-19-2011, 11:27 PM
I was under the impression that Hicks denied the possession and since he was not charged with possession I missed the fact that he admitted possession in his testimony. Chalk another strike against him for talking to the police.

Your example of contempt was based on claiming a key was thrown in a river - a tangible object not a facet of memory. I think it would be bad policy to hold out a judge to be a mind reader and give them authority to penalize a person based on that fictional power. What defense would a person have who in fact forgot their password?

It depends on the record. The judge would have to be able to point to something that allowed him to conclude the claim was a sham.

But someone who truly has forgotten the password under circumstances that look like he;s lying... not much defense.

foolsguinea
07-20-2011, 01:08 AM
Just to fill you in on how the key case might then proceed, though, the judge is entitled to hold the witness in contempt if he fails to provide the key... and while of course he may claim to have thrown it in the river, the judge is entitled to assess the credibility of that statement, and toss him in jail if he feels that claim is false. And unlike actually being convicted of a crime, theoretically the judge can keep the witness in jail for an indeterminate period of time, the idea being that the witness may purge himself of the contempt at any time and thus he holds the key to his own jail cell.That sounds very open to abuse.

Bricker
07-20-2011, 08:02 AM
That sounds very open to abuse.

And yet there have been very few cases in which abuse has been seriously alleged.

The biggest controversy that I recall surrounding a judge's use of his contempt power to force a reluctant person to provide information was the case of Elizabeth Morgan, whose bitter divorce from Eric Forteich raised the issue. The courts ordered unsupervised visitation for the couple's daughter Hilary Forteich. In defiance of that order, Elizabeth hid the child and refused to tell the court where she was, saying that her ex-husband had sexually abused the child and she was acting to prevent repeats of that act.

The judge ordered Morgan to reveal the location of Hilary, and when she refused, the judge jailed her for contempt. She stayed in jail over two years, and was released by (literally) an act of Congress.

Note that this is not entirely on point to what we're discussing here -- there was no question that Morgan knew where her daughter was. But the underlying question is at least similar: the power of the court to punish contumacious conduct is obvious, and equally so the power to confine someone until he complies with the court's order and purges himself of the contempt.

But when a person either cannot (as in the genuinely forgotten password) or will not (as in Morgan's case) how long may the court continue its confinement? It is, after all, not a sentence of punishment with a defined end, but an on-going confinement with the idea that the confinement will compel compliance.

robert_columbia
07-20-2011, 03:22 PM
Interestingly enough, there's a case in my back yard, the Fourth Circuit, decided last week, that touches on a tangential issue. What happens if you learn you're being investigated, and decide to destroy your hard drive before the FBI can seize it?

Turns out you can be convicted of destroying evidence with intent to impede, obstruct, or influence a federal investigation, as prohibited by 18 USC 1519.

A child porn investigation pointed federal agents to one Brian Hicks of North Carolina, whose computer had apparently been linked to downloads of child porn. Hicks was not at home when they visited, and after learning of their visit he destroyed his hard drive. He admitted as much to the agents when they returned.

He was prosecuted under the Sarbanes-Oxley Act, which he complains was intended to apply to financial investigations only. But the court points out that the language is unambiguous, and prohibits:



So the government had no evidence to convict him of child porn, but sent him up for destroying his hard drive, which contained child porn before he destroyed it.

How does the law know that he intended specifically to destroy child porn? For all the court knows, he could have learned of the investigation, realized that while he did not actually possess child porn, he had other things on the hard drive that were socially embarrassing and, though the law could do nothing about them, didn't want them out in public?

cmosdes
07-20-2011, 05:02 PM
Suppose the password to decrypt the hard drive is on a piece of paper on the computer and is 27 random characters long. The defendant doesn't have it memorized but upon learning the computer might be confiscated they burn the paper with the password on it. Have they now destroyed evidence or obstructed justice?

2nd Law
07-20-2011, 05:33 PM
And yet there have been very few cases in which abuse has been seriously alleged.

The biggest controversy that I recall surrounding a judge's use of his contempt power to force a reluctant person to provide information was the case of Elizabeth Morgan, whose bitter divorce from Eric Forteich raised the issue. The courts ordered unsupervised visitation for the couple's daughter Hilary Forteich. In defiance of that order, Elizabeth hid the child and refused to tell the court where she was, saying that her ex-husband had sexually abused the child and she was acting to prevent repeats of that act.

The judge ordered Morgan to reveal the location of Hilary, and when she refused, the judge jailed her for contempt. She stayed in jail over two years, and was released by (literally) an act of Congress.

Note that this is not entirely on point to what we're discussing here -- there was no question that Morgan knew where her daughter was. But the underlying question is at least similar: the power of the court to punish contumacious conduct is obvious, and equally so the power to confine someone until he complies with the court's order and purges himself of the contempt.

But when a person either cannot (as in the genuinely forgotten password) or will not (as in Morgan's case) how long may the court continue its confinement? It is, after all, not a sentence of punishment with a defined end, but an on-going confinement with the idea that the confinement will compel compliance.

I vaguely remember a similar case from about the same time frame where a parent (mother, I think) was held on contempt charges for not disclosing the location of a child, where the suspicion was that the parent had killed the child and hidden the body somewhere. Defendant held for contempt, claimed 5th amendment right to not self incriminate. Not sure how that ended.

Or was that a law school hypothetical?

David42
01-27-2012, 10:08 AM
It depends on the record. The judge would have to be able to point to something that allowed him to conclude the claim was a sham.


I do not think so. The appellate courts do not substitute their judgment of the finding of fact for the trial court's. When explianing this, they say that the cold record alone does not properly reflect testimony, and they never demand that trial courts explain their reasoning on the finding of facts. A Judge is supposed to explain his rulings insofar that he must explain his application of the law to the facts, but the facts themselves the judge need say more than " I did not find this testimony to be credible."

Trial Judges aren't required to point to the record and say this is why. It could be a reason outside the record; the judge didn't like his demeanor, and I've never seen a judge compelled to explain his finding of fact within the record. Sometimes they do, but do they have to? No.

erislover
01-27-2012, 11:33 AM
It seems they've already trashed the fifth amendment in analogous ways. I think a password is much more like a key than some nebulous mind-stuff. If they can compel the person to produce their key, it seems that a password is not even a stretch.

Of course, this would only encourage people to find a way to produce a key which, when used, decrypts totally innocuous documents instead of the content the government thinks they're seeking, or which munches the drive, or whatever. This is definitely within the technological prowess of drive encryption people. (Actually, isn't hidden-within-hidden already possible using TruCrypt?) Then they'll have to outlaw using government-unapproved drive encryption and the fifth amendment will only be there to protect mobsters and high-profile white collar criminals, as God intended.

Captain Amazing
01-27-2012, 12:15 PM
The biggest controversy that I recall surrounding a judge's use of his contempt power to force a reluctant person to provide information was the case of Elizabeth Morgan, whose bitter divorce from Eric Forteich raised the issue.

Another one, (and I realize this is late), which is more on point, is the Beatty Chadwick case. Chadwick was going through a contentious divorce, and his wife claimed he had hidden millions of dollars in an overseas account. When the judge ordered him to deposit $2.5 million of that money with the court, he refused, saying he didn't have the money any longer...that he had lost it in a business transaction, and that there was no such account. So, the judge held him in contempt, and he spent 14 years in jail for contempt until he was finally released.

It probably was in some ways less controversial than the Elizabeth Morgan case just because he was less sympathetic (rich lawyer trying to hide assets from his wife vs. mother trying to protect her daughter from an abusive husband), but it was still an incredibly long contempt sentence (longest in US history), over a disputed factual issue, because, for all anybody knows, he was telling the truth and there really was no money.

Really Not All That Bright
01-27-2012, 12:27 PM
That Morgan case was very interesting, Bricker. Thanks for mentioning it.

Ravenman
01-27-2012, 12:53 PM
In this particular case, I seem to recall reading something this morning which indicates that the defendant had a recorded conversation that would strongly indicate that incriminating documents are encrypted on that laptop. So it seems to me that the government has a firm basis to know that evidence is in their possession, but they are unable to examine the evidence that they already possess.

Although there was a very good analogy used in this thread already, I seem to think of a slightly different analogy, which may not be quite as apt, but is quite compelling to me personally: imagine a man shoots someone and then admits putting the murder weapon in a safe that is totally impossible to open without the cooperation of the murderer. The government has the safe, but it could never open it by any drilling, lockpicking, or any other method. Do we really want to have a system of justice where there exist magic boxes that can never be opened for examination, except if the key happens to be left open in plain sight?

I just fail to see how in a case where the defendant has alluded to the incriminating nature of the evidence, the physical evidence is in the hands of the government, but cannot be exploited for its evidential value, how the final step of compelling the defendant to unlock the indestructible box would violate his civil rights. I don't see a compelling case that the manner in which the box needs to be unlocked (whether password, combination, key, retinal scan, voice scan, or magic spell) would change my calculation.

If certain facts were changed, I'd come to a different conclusion. For example, if the government simply strongly suspected that there may be evidence on the laptop, or the government didn't know of the existence of such a laptop, I may come to a different conclusion.

Hamlet
01-27-2012, 01:01 PM
To update for the OP, the judge issued a ruling (http://www.wired.com/images_blogs/threatlevel/2012/01/decrypt.pdf) on Monday ordering the defendant to produce an unencrypted copy of the hard drive to the police. No acts in the production of that production may be used against her.

She's refused so far. She has until Feb. 21st to produce it. Her attorney vows an appeal. As usual, it will likely be another year or 2 or 7 before there is a resolution if this continues it way through the court system.

Procrustus
01-27-2012, 01:22 PM
The government seems to be missing the purpose of encryption.

lawbuff
01-27-2012, 02:19 PM
Just to fill you in on how the key case might then proceed, though, the judge is entitled to hold the witness in contempt if he fails to provide the key... and while of course he may claim to have thrown it in the river, the judge is entitled to assess the credibility of that statement, and toss him in jail if he feels that claim is false. And unlike actually being convicted of a crime, theoretically the judge can keep the witness in jail for an indeterminate period of time, the idea being that the witness may purge himself of the contempt at any time and thus he holds the key to his own jail cell.


Would a 2255 Motion be in order here? Aren't such, if applicable, usually expedited on application.

treis
01-27-2012, 02:41 PM
I don't think the government should be able to compel anyone to incriminate themselves in anyway. By giving a combination, whether it be safe key, safe combination, or password, you are showing ownership and control of that thing. So if the charge, for example, is child pornography, by giving the encryption code you admit that the laptop is yours and you had control over anything in that encrypted drive. That is one of the elements of the crime the police need to prove, and not something you should be compelled to admit.

erislover
01-27-2012, 02:42 PM
I don't think the government should be able to compel anyone to incriminate themselves in anyway. By giving a combination, whether it be safe key, safe combination, or password, you are showing ownership and control of that thing. So if the charge, for example, is child pornography, by giving the encryption code you admit that the laptop is yours and you had control over anything in that encrypted drive. That is one of the elements of the crime the police need to prove, and not something you should be compelled to admit.So what if the government said, "Producing the key/code/password cannot be used in any further litigation ever ever ever (and we mean it)"?

kaylasdad99
01-27-2012, 02:48 PM
Sorry, I didn't want to read the entirety of the thread. Was it established last summer whether the government could compel the person to open the safe to which he knew the combination?

Ravenman
01-27-2012, 04:15 PM
The government seems to be missing the purpose of encryption.
Does the government also miss the point of people putting locks on their doors?

NotreDame05
01-27-2012, 05:23 PM
I don't think the government should be able to compel anyone to incriminate themselves in anyway. By giving a combination, whether it be safe key, safe combination, or password, you are showing ownership and control of that thing. So if the charge, for example, is child pornography, by giving the encryption code you admit that the laptop is yours and you had control over anything in that encrypted drive. That is one of the elements of the crime the police need to prove, and not something you should be compelled to admit.

Would the fact the government already knows who owns the laptop and is aware the defendant has exerted control over it, change your opinion?

treis
01-28-2012, 10:37 AM
So what if the government said, "Producing the key/code/password cannot be used in any further litigation ever ever ever (and we mean it)"?

I can't see how that makes a difference at all. It doesn't matter if the police pinky swear they won't use the information in litigation. They will use the information to develop further evidence against me. It's like forcing someone to say where the body is in the hopes of finding DNA evidence linking him to the crime.

Would the fact the government already knows who owns the laptop and is aware the defendant has exerted control over it, change your opinion?

Of course not.

David42
01-28-2012, 11:18 AM
Would a 2255 Motion be in order here? Aren't such, if applicable, usually expedited on application.

No. Contempt of court is not a "sentence" per se. Theoretically a person in contempt of court holds the key to his cell. Of course this is not always true in practice.

lawbuff
01-28-2012, 11:23 AM
No. Contempt of court is not a "sentence" per se. Theoretically a person in contempt of court holds the key to his cell. Of course this is not always true in practice.

The detention, IMO, would be subject to "Collateral attack" as 2255 states.

David42
01-28-2012, 11:24 AM
Would the fact the government already knows who owns the laptop and is aware the defendant has exerted control over it, change your opinion?

I agree with Treis. No. The issue is not what the government knows or thinks it knows; the issue is what the governemnt can prove.

For instance, at trial, it may be that a police officer's testimony that a laptop was found in your home is the ONLY evidence that it belongs to you. This may be explainable and rebutted; but evidence that a person has the password is almost entirely conclusive of the fact of ownership.

In short, the govenrment having one piece of evidence does not have an effect of waiving the fifth amendment and therefore the governemnt may compel you to convict yourself by producing all sorts of other evidence.

In my view compelling the password should only be done if total immunity has been granted, and not partial, and this business of playing games with use immunity and trying a person regardless stinks to high heaven.

David42
01-28-2012, 11:26 AM
The detention, IMO, would be subject to "Collateral attack" as 2255 states.

If that's just your own opinion I can't argue with you.

I never did federal work though. In Kansas I'd go the route of habeas corpus for this problem.

David42
01-28-2012, 11:31 AM
The detention, IMO, would be subject to "Collateral attack" as 2255 states.

The problem that I am seeing--I'm not arguing that a 2255 motion doesn't formalize habeas corpus--but doesn't 2255 only apply to a criminal matter? Contempt of court isn't criminal even if it arises from a criminal case is my point.

habeas can also be approached from the common law.

lawbuff
01-28-2012, 11:37 AM
The problem that I am seeing--I'm not arguing that a 2255 motion doesn't formalize habeas corpus--but doesn't 2255 only apply to a criminal matter? Contempt of court isn't criminal even if it arises from a criminal case is my point.

habeas can also be approached from the common law.


2255 and 2254 are both HC Petitions/Motions.

2255;

(a) A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

Now, Contempt is NOT an act of Congress, but I do not know if the case law includes Contempt. That is the reason I posed the question.

Here I suppose not complying with an oder is Indirect Contempt, whther that is criminally differentiated from Direct contempt, I would have to research.

Uber_the_Goober
01-28-2012, 11:39 AM
Yes, just the same crime as being properly served with a subpoena to produce paper records and burning them instead.

Wouldn't there be a burden of proof on the prosecution then to prove that you intentionally and knowingly provided a password which would destroy the drive?

What if your drive was set up such that any incorrect password would destroy it? If it is destroyed there is no way to know if they put in the wrong password because of a typo or because you gave them the wrong password. Right? :dubious:

David42
01-28-2012, 12:06 PM
Wouldn't there be a burden of proof on the prosecution then to prove that you intentionally and knowingly provided a password which would destroy the drive?

What if your drive was set up such that any incorrect password would destroy it? If it is destroyed there is no way to know if they put in the wrong password because of a typo or because you gave them the wrong password. Right? :dubious:

Couldn't one look at the keystrokes to determine whether the password was properly entered?

There doies seem to be some wiggle room here though. Suppose you say a word with alternate spellings and the police simply assume the more popular spelling and therefore destroy the drive's contents because they didn't think of the alternative?

David42
01-28-2012, 12:14 PM
2255 and 2254 are both HC Petitions/Motions.

2255;

(a) A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

Now, Contempt is NOT an act of Congress, but I do not know if the case law includes Contempt. That is the reason I posed the question.

Here I suppose not complying with an oder is Indirect Contempt, whther that is criminally differentiated from Direct contempt, I would have to research.

It's the court that's "established by Congress" not the court's actions.

My point is that contempt doesn't qualify as a sentence. Contempt isn't meant to punish, it's meant to compel a certain action.

http://dictionary.law.com/Default.aspx?selected=1917 Definition of sentence.

compare with

http://dictionary.law.com/Default.aspx?selected=325 definition of contempt.

lawbuff
01-28-2012, 12:18 PM
My point is that contempt doesn't qualify as a sentence. Contempt isn't meant to punish, it's meant to compel a certain action.



Direct contempt is meant to punish.

David42
01-28-2012, 12:37 PM
Direct contempt is meant to punish.

That's true. But we're concerned with indirect contempt here. Direct contempt is meant to punish bad behavior in the courtroom. Refusing a court's orders is indirect.

Regardless, Direct contempt is still not seen as a criminal sentence.

You have to be convicted of a crime to come under 2255.

lawbuff
01-28-2012, 01:01 PM
That's true. But we're concerned with indirect contempt here. Direct contempt is meant to punish bad behavior in the courtroom. Refusing a court's orders is indirect.

Regardless, Direct contempt is still not seen as a criminal sentence.

You have to be convicted of a crime to come under 2255.

Here are some Annotations on Article 3 court's ancillary powers, and it states that depending on the means to achieve compliance, etc., contempt can be criminal or civil and 18 USC 401 is the US Code outlining the contempt law.

....The classic criminal contempt is one where the act of contempt has been completed, punishment is imposed to vindicate the authority of the court, and a person cannot by subsequent action purge himself of such contempt. 154....

http://caselaw.lp.findlaw.com/data/constitution/article03/04.html


I knew Ohio had Contempt authorization by statute, but was not familiar with the federal courts, so I checked.

The Q remains, would 401 be an act of congress? I don't see why not?

18 USC 401:

A court of the United States shall have power to punish by fine
or imprisonment, or both, at its discretion, such contempt of its
authority, and none other, as -
(1) Misbehavior of any person in its presence or so near
thereto as to obstruct the administration of justice;
(2) Misbehavior of any of its officers in their official
transactions;
(3) Disobedience or resistance to its lawful writ, process,
order, rule, decree, or command.

David42
01-28-2012, 01:04 PM
Here are some Annotations on Article 3 court's ancillary powers, and it states that depending on the means to achieve compliane, etc., contempt can be criminal or civil and 18 USC 401 is the US Code outlining the contempt law.

http://caselaw.lp.findlaw.com/data/constitution/article03/04.html#f156


I knew Ohio had Contempt authorization by statute, but was not familiar with the federal courts, so I checked.

The Q remains, would 401 be an act of congress? I don't see why not?

18 USC 401:

A court of the United States shall have power to punish by fine
or imprisonment, or both, at its discretion, such contempt of its
authority, and none other, as -
(1) Misbehavior of any person in its presence or so near
thereto as to obstruct the administration of justice;
(2) Misbehavior of any of its officers in their official
transactions;
(3) Disobedience or resistance to its lawful writ, process,
order, rule, decree, or command.

There is a difference between "criminal contempt" and "held in contempt in a criminal case."

lawbuff
01-28-2012, 01:08 PM
There is a difference between "criminal contempt" and "held in contempt in a criminal case."

Elucidate!

David42
01-28-2012, 01:34 PM
Elucidate!

Indirect contempt is always a civil power the court wields.

Criminal contempt is reserved for things that generally are also crimes and are Direct contempt in nature--for instance, if I jump up from the defense table, and jackslap the prosecutor. The act was criminal in nature. We differentiate this sort as "criminal contempt" because there wasn't the ordinary procedure of criminal law--arraignment, trial, conviction, sentence--and the reason we dispense with those is that the judge saw the crime with his own two eyes; he doesn't need all these safeguards to be sure he's not making a mistake. The acts it covers are still basically criminal. But that doesn't mean there has to specifically be a statute written outlawing your behavior--though I'm hard pressed to think of a direct contempt that wouldn't have a criminal statute counterpart.

Criminal contempt is basically another way to say direct contempt.

Indirect contempt has to involve a hearing and a chance to show the court that you didn't fail to follow the court's orders, or that it was beyond your control to follow the court's orders. This can arise in the context of a criminal, civil, or equitable case, just as "criminal contempt" can.

it's the act and not the kind of case you are litigating that makes it criminal contempt (direct) or civil contempt (indirect).

David42
01-28-2012, 01:38 PM
Ok, I did think of one--You could be cited in direct, or criminal contempt, for wearing shorts to court against the court's dress code, which doesn't have a criminal statute counterpart.

David42
01-29-2012, 03:06 AM
Ok, I did think of one--You could be cited in direct, or criminal contempt, for wearing shorts to court against the court's dress code, which doesn't have a criminal statute counterpart.

Interesting anecdote this made me think of; matter of fact I did a double take like I'd forgotten my past when I reread my post with the direct contempt for shorts:

The day after I learned that the city of Wichita had a scheme substantially different than the "two-tier jury trial scheme" approved of by the U.S. Supreme court, I got caught having a couple drags off a cigarette in the bathroom of the municipal court.

Harold Flaigle was on the bench. The bailiff drug me in for smoking; I already was scheduled to appear.

Flaigle didn't seem to care about the smoking. He was too interested in becoming angry over my argument that unless the city allowed me to opt out of their court procedure and go straight to district court where I could have a jury trial, the city had no jurisdiction to try me. (my potential sentence was greater than six months.) And he got crossed-eyed angry, let me tell you.

He threw me in the holding cell for about four hours. He brought me back in. He started talking about my unpaid fine. I started talking about lack of jurisdiction and back I went.

I was wrong because "I should have brought that argument before I was convicted." Flaigle didn't know that a jurisdictional argument can be raised "at any time."

The next morning he brought me back in and didn't talk about my fine or smoking or the fact that I was wearing shorts and sandals and a tank top. He dismissed my case.

I would have sued him personally (at the time) but for judicial function immunity. Turns out he let me go because he was convinced he didn't have immunity where he has no jurisdiction.

This sounds like the kind of thing that should make the papers but it doesn't. I'm only able to tell the story with all these facts a long time later.

Yes I knew the dress code. To tell the truth I wonder if I have become what I hated when I failed to remember this as an instance of direct contempt of court without a statutory counterpart.

If Flaigle hadn't been so angry (overly emotional people don't make good judges) he'd have been right to throw me in jail overnight for wearing shorts and sandals.

But I was right about Wichita's two-tier jury scheme. I've tried five times to get them to arrest me so I could challenge this but they won't cooperate. I have a license for crime in Wichita today, not that I push it; they just won't prosecute me. Even for my three pound marijuana arrest in 2005. It doesn't make sense to me; it's the municipal court I claimed had no jurisdiction, why not take me to district court?

The treatise I wrote and mailed to the judges about pursuit of happiness and the drug war...

I wonder why I'm unusual.

Uber_the_Goober
01-29-2012, 12:23 PM
Couldn't one look at the keystrokes to determine whether the password was properly entered?

There doies seem to be some wiggle room here though. Suppose you say a word with alternate spellings and the police simply assume the more popular spelling and therefore destroy the drive's contents because they didn't think of the alternative?

I suppose, provided you are using a computer that has a keystroke recording software on it...

I kinda wish this thread would get back to this issue and maybe take the "contempt of court" issue to another thread, since it seems like it's got legs of its own and is an interesting subject apart from this password issue.

But anyway I still have the question - if you gave the wrong password to the police, knowingly or unknowingly, and it destroyed the drive, wouldn't there be a burden of proof on THEM to prove that you intended to destroy the evidence? How can they say with any certainty that it wasn't their fault, or that the password was communicated wrong, or some other reason? Or maybe there was some really crappy encryption software that just didn't behave in a very intuitive manner and the drive was destroyed because of doing something wrong because of unfamiliarity with the drive?

David42
01-29-2012, 12:47 PM
I suppose, provided you are using a computer that has a keystroke recording software on it...

I kinda wish this thread would get back to this issue and maybe take the "contempt of court" issue to another thread, since it seems like it's got legs of its own and is an interesting subject apart from this password issue.

But anyway I still have the question - if you gave the wrong password to the police, knowingly or unknowingly, and it destroyed the drive, wouldn't there be a burden of proof on THEM to prove that you intended to destroy the evidence? How can they say with any certainty that it wasn't their fault, or that the password was communicated wrong, or some other reason? Or maybe there was some really crappy encryption software that just didn't behave in a very intuitive manner and the drive was destroyed because of doing something wrong because of unfamiliarity with the drive?

Yes, you are correct that the burden is one the police to prove this. I didn't realize that not all computers would log the keystrokes.

However I think that contempt of court is a valid discussion in a thread such as this because it is the only means the court has of compelling a password. At any rate it looks settled anyway.

NotreDame05
01-30-2012, 11:50 AM
Of course not.

Can you tell me why? Recall this was about your comment of, " I don't think the government should be able to compel anyone to incriminate themselves in anyway. By giving a combination, whether it be safe key, safe combination, or password, you are showing ownership and control of that thing. So if the charge, for example, is child pornography, by giving the encryption code you admit that the laptop is yours and you had control over anything in that encrypted drive. That is one of the elements of the crime the police need to prove, and not something you should be compelled to admit.

To which I asked, " Would the fact the government already knows who owns the laptop and is aware the defendant has exerted control over it, change your opinion?"

Can you tell me why the fact the government already knows who owns the laptop and is equally aware the defendant has exercted control over it doesn't change your opinion?

NotreDame05
01-30-2012, 12:12 PM
In my view compelling the password should only be done if total immunity has been granted, and not partial, and this business of playing games with use immunity and trying a person regardless stinks to high heaven.

I agree with Treis. No. The issue is not what the government knows or thinks it knows; the issue is what the governemnt can prove.


I disagree. The issue is whether the conduct on behalf of the witness/suspect/defendant is testimonial, communicates a message, and is incriminating. After all, the relevant language from the 5th Amendment has an eye towards trial and prohibiting the individual from being a "witness" against him or herself in a "any criminal case." The focus is upon the individual/suspect/defendant and whether what they are doing is both testimonial and incriminating, and if so, it cannot be used at trial if compelled by the government.

For instance, at trial, it may be that a police officer's testimony that a laptop was found in your home is the ONLY evidence that it belongs to you. This may be explainable and rebutted; but evidence that a person has the password is almost entirely conclusive of the fact of ownership.

Well, since you are framing matters in terms of "For instance," I'd like to focus upon a particular "for instance" and it is the facts of this case, which are immediately distinguishable from your "for instance" above.

First, they are not at the trial phase in this case but the investigative phase. Second, the police are already aware of A.) The suspect's knowledge of the existence of the laptop, B.) The suspect's knowledge of the existence of files on the laptop, C.) The suspect's knowledge of the existence of a password protecting the files, D.) Suspect's use or ownership of the laptop, all based on the suspect's recorded phone conversation with her ex-husband. This combined with the fact her name is the default logon screen name, and the laptop was found in her bedroom, renders her disclosure of the password, or the encrypted files, as non-incriminating in terms of ownership/use of the laptop.

I agree with you, there are perhaps some instances in which disclosure of the password or encrypted files is incriminating, but in this instance , under these facts, ostensibly this is not the case.

David42
01-30-2012, 12:27 PM
I disagree. The issue is whether the conduct on behalf of the witness/suspect/defendant is testimonial, communicates a message, and is incriminating. After all, the relevant language from the 5th Amendment has an eye towards trial and prohibiting the individual from being a "witness" against him or herself in a "any criminal case." The focus is upon the individual/suspect/defendant and whether what they are doing is both testimonial and incriminating, and if so, it cannot be used at trial if compelled by the government.



Well, since you are framing matters in terms of "For instance," I'd like to focus upon a particular "for instance" and it is the facts of this case, which are immediately distinguishable from your "for instance" above.

First, they are not at the trial phase in this case but the investigative phase. Second, the police are already aware of A.) The suspect's knowledge of the existence of the laptop, B.) The suspect's knowledge of the existence of files on the laptop, C.) The suspect's knowledge of the existence of a password protecting the files, D.) Suspect's use or ownership of the laptop, all based on the suspect's recorded phone conversation with her ex-husband. This combined with the fact her name is the default logon screen name, and the laptop was found in her bedroom, renders her disclosure of the password, or the encrypted files, as non-incriminating in terms of ownership/use of the laptop.

It doesn't mater what they "know." Knowing something and having admissible evidence to prove it are two different things.



I agree with you, there are perhaps some instances in which disclosure of the password or encrypted files is incriminating, but in this instance , under these facts, ostensibly this is not the case.

I missed the "during trial only" part of the fifth amendment. We apply the fifth amendment's protections to police interrogations before trial, so I think you are clearly in error.

I guess you're missing the point that police gather evidence FOR THE PURPOSE of presenting it at trial.

Saint Cad
01-30-2012, 12:44 PM
My layman's view is that while the law can prevent me from destroying evidence, it certainly shouldn't require me to provide evidence to them either. Let them do their job, get a warrant and find, sieze, unlock, decrypt the evidence on their own.

NotreDame05
01-30-2012, 12:45 PM
I missed the "during trial only" part of the fifth amendment. We apply the fifth amendment's protections to police interrogations before trial, so I think you are clearly in error.

I guess you're missing the point that police gather evidence FOR THE PURPOSE of presenting it at trial.

It doesn't mater what they "know." Knowing something and having admissible evidence to prove it are two different things.


Actually, what they know may matter a great deal. If they already "know" the evidence exists, and know where it is located, along with being aware the individual knows where it is located, then the individual getting the evidence or granting access is not incriminating. I am interested in you articulating how exactly, under these facts and those of the case, getting the evidence or granting access constitutes as incriminating?

I missed the "during trial only" part of the fifth amendment. We apply the fifth amendment's protections to police interrogations before trial, so I think you are clearly in error.

I guess you're missing the point that police gather evidence FOR THE PURPOSE of presenting it at trial

Nice strawman argument. I think you are in error for misconstruing my argument. There is no "guessing" when I say you clearly have missed my point and decided, perhaps conveniently, to address another point. So, let me assist you so you can properly understand my position and in doing so eradicate or abate any future endeavors on your behalf to miconstrue my position on this point.

I previously said, "After all, the relevant language from the 5th Amendment has an eye towards trial and prohibiting the individual from being a "witness" against him or herself in a "any criminal case." The focus is upon the individual/suspect/defendant and whether what they are doing is both testimonial and incriminating, and if so, it cannot be used at trial if compelled by the government."

Quite clearly, by my own statements above, I am cognizant of the fact police gather evidence for the purpose of trial, and in addition my own comments demonstrate, rather unequivocally, if the evidence gathered is testimoninal and incriminating, then it is not admissible at trial if compelled by the government. So spare me this bullcrap strawman argument you have espoused for me.

I will say, however, under an Original Meaning of the 5th Amendment, I have serious doubts this is permissible. However, under the presently prevailing case law, this is a reasonable ruling by the trial judge.

NotreDame05
01-30-2012, 12:47 PM
My layman's view is that while the law can prevent me from destroying evidence, it certainly shouldn't require me to provide evidence to them either. Let them do their job, get a warrant and find, sieze, unlock, decrypt the evidence on their own.

This was the law around the turn of the 20th century. The U.S. Supreme Court has since reversed itself through a series of opinions. In other words, compelling the production of evidence, testimonial or not, was construed as a violation of the 5th Amendment by the U.S. Supreme Court around the turn of the 20th century. This is presently no longer true and the Court has reversed this position since in its 5th Amendment jurisprudence.

David42
01-30-2012, 01:14 PM
Actually, what they know may matter a great deal. If they already "know" the evidence exists, and know where it is located, along with being aware the individual knows where it is located, then the individual getting the evidence or granting access is not incriminating. I am interested in you articulating how exactly, under these facts and those of the case, getting the evidence or granting access constitutes as incriminating?



Nice strawman argument. I think you are in error for misconstruing my argument. There is no "guessing" when I say you clearly have missed my point and decided, perhaps conveniently, to address another point. So, let me assist you so you can properly understand my position and in doing so eradicate or abate any future endeavors on your behalf to miconstrue my position on this point.

I previously said, "After all, the relevant language from the 5th Amendment has an eye towards trial and prohibiting the individual from being a "witness" against him or herself in a "any criminal case." The focus is upon the individual/suspect/defendant and whether what they are doing is both testimonial and incriminating, and if so, it cannot be used at trial if compelled by the government."

Quite clearly, by my own statements above, I am cognizant of the fact police gather evidence for the purpose of trial, and in addition my own comments demonstrate, rather unequivocally, if the evidence gathered is testimoninal and incriminating, then it is not admissible at trial if compelled by the government. So spare me this bullcrap strawman argument you have espoused for me.

I will say, however, under an Original Meaning of the 5th Amendment, I have serious doubts this is permissible. However, under the presently prevailing case law, this is a reasonable ruling by the trial judge.

Well you did seem to draw some distinction between pre-trial evidence gathering and testimony during trial.

I can't think of anytime giving the police a password isn't incriminating. It should ALWAYS prove that you have control over the laptop and is more important than the laptop being found in your house for purposes of incriminating. All other evidence of ownership is lesser.

treis
01-30-2012, 01:53 PM
Can you tell me why? Recall this was about your comment of, " I don't think the government should be able to compel anyone to incriminate themselves in anyway. By giving a combination, whether it be safe key, safe combination, or password, you are showing ownership and control of that thing. So if the charge, for example, is child pornography, by giving the encryption code you admit that the laptop is yours and you had control over anything in that encrypted drive. That is one of the elements of the crime the police need to prove, and not something you should be compelled to admit.

To which I asked, " Would the fact the government already knows who owns the laptop and is aware the defendant has exerted control over it, change your opinion?"

Can you tell me why the fact the government already knows who owns the laptop and is equally aware the defendant has exercted control over it doesn't change your opinion?

Because what the government knows isn't legally relevant. Them knowing you're guilty doesn't change your constitutional rights.

Let's go with a hypothetical. Let's say the police have recordings of you talking about your meth lab, letters referencing your meth lab, voicemails about your meth lab, e-mails about your meth lab, a document labeled "expenditures for NotreDame05's meth lab", pictures of you in a lab under a banner of "NotreDame05's meth lab", and a video of you making meth while repeatedly saying, "I am NotreDame05 and I am making meth in my own meth lab". In short, the police are 100% certain you have a meth lab, but they aren't sure where.

Can they force you to lead them to that meth lab? The only promise they will give is that the fact you lead them to the meth lab will not be used to prosecute, but any fingerprints or other evidence developed in the lab will. Is that constitutional?

NotreDame05
01-30-2012, 02:56 PM
I can't think of anytime giving the police a password isn't incriminating. It should ALWAYS prove that you have control over the laptop and is more important than the laptop being found in your house for purposes of incriminating. All other evidence of ownership is lesser.

Well you did seem to draw some distinction between pre-trial evidence gathering and testimony during trial.


Really? Those comments I italicized can be appropriately construed as seeming to draw such a distinction? No way but I digress and discussing such a point is irrelevant now.

can't think of anytime giving the police a password isn't incriminating. It should ALWAYS prove that you have control over the laptop and is more important than the laptop being found in your house for purposes of incriminating. All other evidence of ownership is lesser.

I can't see how it would be incriminating, except for possibly the act of production itself, under the circumstances of law enforcement alredy knowing person X had or has control over the laptop. If law enforcement is already aware of who had or is presently exerting control over the laptop, then providing the password isn't incriminating, unless we assume law enforcement coming into contact with information it already has or is aware of constitutes as incriminating, which does not make a lot of sense although it is not entirely devoid of merit.

NotreDame05
01-30-2012, 03:21 PM
Because what the government knows isn't legally relevant. Them knowing you're guilty doesn't change your constitutional rights.

Let's go with a hypothetical. Let's say the police have recordings of you talking about your meth lab, letters referencing your meth lab, voicemails about your meth lab, e-mails about your meth lab, a document labeled "expenditures for NotreDame05's meth lab", pictures of you in a lab under a banner of "NotreDame05's meth lab", and a video of you making meth while repeatedly saying, "I am NotreDame05 and I am making meth in my own meth lab". In short, the police are 100% certain you have a meth lab, but they aren't sure where.

Can they force you to lead them to that meth lab? The only promise they will give is that the fact you lead them to the meth lab will not be used to prosecute, but any fingerprints or other evidence developed in the lab will. Is that constitutional?

Because what the government knows isn't legally relevant. Them knowing you're guilty doesn't change your constitutional rights.

Let's go with a hypothetical. Let's say the police have recordings of you talking about your meth lab, letters referencing your meth lab, voicemails about your meth lab, e-mails about your meth lab, a document labeled "expenditures for NotreDame05's meth lab", pictures of you in a lab under a banner of "NotreDame05's meth lab", and a video of you making meth while repeatedly saying, "I am NotreDame05 and I am making meth in my own meth lab". In short, the police are 100% certain you have a meth lab, but they aren't sure where.

Can they force you to lead them to that meth lab?

The answer to the question would be no and there is at least one very important fact readily distinguishing the facts of your hypothetical from the facts of this decision by the district court. In your hypothetical, law enforcement is unaware of the location of the methamphetamine lab, and consequently, revealing its location is incriminating.

The evidentiary gap between the documentary evidence, such as the recordings, voicmails, e-mails, papers, etcetera, and the lab in question is the fact the two have to be linked together, and they aren't under your hypothetical. The documentary evidence merely indicates the existence of a methamphetamine lab at some point, possibly in the past, but does not indicate presently the existence of a meth lab. Taking law enforcement to the location of the lab demonstrates his knowledge of the lab presently in existence, which is not at all made known to law enforcement by the documentary evidence in your hypothetical. At best all law enforcement knows by the documentary evidence is he had a lab, or at least wrote about having a lab.

Furthermore, the documentary evidence does not indicate or suggest the lab in question is the lab referred to in the documentary evidence, which is to say there is the possibility of two separate crimes, the lab you reference but unknown to law enforcement, and the other lab mentioned in the documentation.

These facts are unlike those of the recent decision in which law enforcement knows where the files are kept, who has control or had control over the laptop, and is aware of who has and knows the password.

treis
01-30-2012, 07:17 PM
At best all law enforcement knows by the documentary evidence is he had a lab, or at least wrote about having a lab.


Your quibble is about the degree of certainty to which the government knows something. In my hypothetical they know with, say, 99.9% certainty that I have a drug lab somewhere. In the case under discussion, they may know with 99.9999% certainty. But, IMHO that is ultimately irrelevant. The salient point is that you can not force someone to admit a part of a crime.
Part of proving the crime of child pornography is proving ownership and control of the laptop. No different than proving ownership and control of a drug lab. By forcing someone to give up a password, they are admitting that, yes, this is my computer and I have control over it. Exactly the same as the drug lab. You are admitting that yes, you know about this building and have control over everything in it.

David42
01-31-2012, 12:12 PM
Because what the government knows isn't legally relevant. Them knowing you're guilty doesn't change your constitutional rights.

Let's go with a hypothetical. Let's say the police have recordings of you talking about your meth lab, letters referencing your meth lab, voicemails about your meth lab, e-mails about your meth lab, a document labeled "expenditures for NotreDame05's meth lab", pictures of you in a lab under a banner of "NotreDame05's meth lab", and a video of you making meth while repeatedly saying, "I am NotreDame05 and I am making meth in my own meth lab". In short, the police are 100% certain you have a meth lab, but they aren't sure where.

Can they force you to lead them to that meth lab? The only promise they will give is that the fact you lead them to the meth lab will not be used to prosecute, but any fingerprints or other evidence developed in the lab will. Is that constitutional?

Actually do to the doctrine of use immunity, I do believe the courts would say yes this is constitutional. Don't get me wrong, I don't like it and think it does not enforce the constitution and is unconstitutional in my opinion. The same for the password.

Steve MB
01-31-2012, 12:45 PM
Of course, this would only encourage people to find a way to produce a key which, when used, decrypts totally innocuous documents instead of the content the government thinks they're seeking, or which munches the drive, or whatever. This is definitely within the technological prowess of drive encryption people. (Actually, isn't hidden-within-hidden already possible using TruCrypt?) Then they'll have to outlaw using government-unapproved drive encryption and the fifth amendment will only be there to protect mobsters and high-profile white collar criminals, as God intended.

A password to munch the drive won't do much good -- unless the police are all as dumb as Inspector Clouseau, they'll back up the encrypted data before trying to access it.

A plausible-deniability encrypted partition (which is an option under TrueCrypt) is a more effective defense -- if implemented properly, there's no real way to prove it's there (an encrypted partition is supposed to be padded with random data, and the real-secrets partition looks just like random data within the innocuous-cover partition).

NotreDame05
01-31-2012, 01:59 PM
Your quibble is about the degree of certainty to which the government knows something. In my hypothetical they know with, say, 99.9% certainty that I have a drug lab somewhere. In the case under discussion, they may know with 99.9999% certainty. But, IMHO that is ultimately irrelevant. The salient point is that you can not force someone to admit a part of a crime.
Part of proving the crime of child pornography is proving ownership and control of the laptop. No different than proving ownership and control of a drug lab. By forcing someone to give up a password, they are admitting that, yes, this is my computer and I have control over it. Exactly the same as the drug lab. You are admitting that yes, you know about this building and have control over everything in it.

Your quibble is about the degree of certainty to which the government knows something.

It isn't "my quibble." I am not the one who espoused the doctrine of foregone conclusion or the reasoning used to support it, the U.S. Supreme Court did, which was relied upon in this case and another. I do, however, see some merit in the foregone conclusion and the reasoning used to justify it.

My retort had nothing to do with the degree of certainty regarding government knowledge about the existence of some fact.

You could improve your hypothetical by stating law enforcement has evidence demonstrating a specific methamphetamine lab at a specific location belongs to X person.

The salient point is that you can not force someone to admit a part of a crime.

I agree. The U.S. Supreme Court agrees. The trial court in this case agrees. However, according to the trial court, relying upon the reasoning in U.S. v. Fischer, the defendant/suspect is not being forced to admit to any crime.

Part of proving the crime of child pornography is proving ownership and control of the laptop. No different than proving ownership and control of a drug lab. By forcing someone to give up a password, they are admitting that, yes, this is my computer and I have control over it.

No, you are assuming the existence of an admission under these facts without actually presenting any argument establishing such an admission. The Court has long held the incriminating conduct must A.) be testimonial, i.e. communicates a message and B.) the testimony/message is incriminating.

As the trial court reasoned, when the government already has separate and independent evidence demonstrating A.) ownership, B.) control, then providing them with a password is not testimonial or incriminating, as it reveals nothing to law enforcement, i.e. it isn't testimonial as such information was a foregone conclusion, they already knew it and the password therefore says nothing, and it isn't incriminating, precisely because they already know the information. This reasoning is perhaps strengthened when they have the defendant's own statements to a third party demonstrating ownership or control, maybe both but certainly one or the other, along with the defendant's own statements acknowledging the existence of a password.

Under these facts, disclosure of the password or encrypted data is not incriminating according to the court.

I will say, however, despite finding this reasoning to be persuasive, I am very ambivalent about the position taken by the trial court, and indeed I myself have some apprehensions about this position.

David42
02-01-2012, 04:11 PM
NotreDame05 could you please better cite U.S. v. Fischer upon which you rely? A link would be nice but a full citation would work. Even the year would help.

The fifth amendment/production of documents case I know of is Fisher without a c.