# Compelling production of a password, revisited **URL:** \ **Category:** Great Debates\ **Created:** [July 18, 2011, 2:48pm UTC](https://boards.straightdope.com/t/compelling-production-of-a-password-revisited/589450 "2011-07-18T14:48:56Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![cmosdes](https://avatars.discourse-cdn.com/v4/letter/c/a587f6/32.png) [@cmosdes](https://boards.straightdope.com/u/cmosdes)\ **Post date:** [July 20, 2011, 10:02pm UTC](https://boards.straightdope.com/t/compelling-production-of-a-password-revisited/589450/41 "2011-07-20T22:02:32Z")
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? ---
**Author:** ![2nd\_Law](https://avatars.discourse-cdn.com/v4/letter/2/f475e1/32.png) [@2nd\_Law](https://boards.straightdope.com/u/2nd_Law)\ **Post date:** [July 20, 2011, 10:33pm UTC](https://boards.straightdope.com/t/compelling-production-of-a-password-revisited/589450/42 "2011-07-20T22:33:53Z")
> [@Bricker](#): > > 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? ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [January 27, 2012, 4:08pm UTC](https://boards.straightdope.com/t/compelling-production-of-a-password-revisited/589450/43 "2012-01-27T16:08:46Z")
> [@Bricker](#): > > 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. ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [January 27, 2012, 5:33pm UTC](https://boards.straightdope.com/t/compelling-production-of-a-password-revisited/589450/44 "2012-01-27T17:33:53Z")
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. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [January 27, 2012, 6:15pm UTC](https://boards.straightdope.com/t/compelling-production-of-a-password-revisited/589450/45 "2012-01-27T18:15:49Z")
> [@Bricker](#): > > 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. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 27, 2012, 6:27pm UTC](https://boards.straightdope.com/t/compelling-production-of-a-password-revisited/589450/46 "2012-01-27T18:27:25Z")
That Morgan case was very interesting, **Bricker**. Thanks for mentioning it. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [January 27, 2012, 6:53pm UTC](https://boards.straightdope.com/t/compelling-production-of-a-password-revisited/589450/47 "2012-01-27T18:53:32Z")
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. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [January 27, 2012, 7:01pm UTC](https://boards.straightdope.com/t/compelling-production-of-a-password-revisited/589450/48 "2012-01-27T19:01:07Z")
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. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [January 27, 2012, 7:22pm UTC](https://boards.straightdope.com/t/compelling-production-of-a-password-revisited/589450/49 "2012-01-27T19:22:28Z")
The government seems to be missing the _purpose_ of encryption. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [January 27, 2012, 8:19pm UTC](https://boards.straightdope.com/t/compelling-production-of-a-password-revisited/589450/50 "2012-01-27T20:19:47Z")
> [@Bricker](#): > > 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. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [January 27, 2012, 8:41pm UTC](https://boards.straightdope.com/t/compelling-production-of-a-password-revisited/589450/51 "2012-01-27T20:41:02Z")
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. ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [January 27, 2012, 8:42pm UTC](https://boards.straightdope.com/t/compelling-production-of-a-password-revisited/589450/52 "2012-01-27T20:42:41Z")
> [@treis](#): > > 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)”? ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [January 27, 2012, 8:48pm UTC](https://boards.straightdope.com/t/compelling-production-of-a-password-revisited/589450/53 "2012-01-27T20:48:06Z")
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? ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [January 27, 2012, 10:15pm UTC](https://boards.straightdope.com/t/compelling-production-of-a-password-revisited/589450/54 "2012-01-27T22:15:46Z")
> [@Procrustus](#): > > The government seems to be missing the _purpose_ of encryption. Does the government also miss the point of people putting locks on their doors? ---
**Author:** ![NotreDame05](https://avatars.discourse-cdn.com/v4/letter/n/90ced4/32.png) [@NotreDame05](https://boards.straightdope.com/u/NotreDame05)\ **Post date:** [January 27, 2012, 11:23pm UTC](https://boards.straightdope.com/t/compelling-production-of-a-password-revisited/589450/55 "2012-01-27T23:23:13Z")
> [@treis](#): > > 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? ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [January 28, 2012, 4:37pm UTC](https://boards.straightdope.com/t/compelling-production-of-a-password-revisited/589450/56 "2012-01-28T16:37:44Z")
> [@erislover](#): > > 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. > [@NotreDame05](#): > > 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. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [January 28, 2012, 5:18pm UTC](https://boards.straightdope.com/t/compelling-production-of-a-password-revisited/589450/57 "2012-01-28T17:18:13Z")
> [@lawbuff](#): > > 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. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [January 28, 2012, 5:23pm UTC](https://boards.straightdope.com/t/compelling-production-of-a-password-revisited/589450/58 "2012-01-28T17:23:34Z")
> [@David42](#): > > 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. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [January 28, 2012, 5:24pm UTC](https://boards.straightdope.com/t/compelling-production-of-a-password-revisited/589450/59 "2012-01-28T17:24:15Z")
> [@NotreDame05](#): > > 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. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [January 28, 2012, 5:26pm UTC](https://boards.straightdope.com/t/compelling-production-of-a-password-revisited/589450/60 "2012-01-28T17:26:48Z")
> [@lawbuff](#): > > 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. [Previous page](https://boards.straightdope.com/t/compelling-production-of-a-password-revisited/589450.md?page=2) [Next page](https://boards.straightdope.com/t/compelling-production-of-a-password-revisited/589450.md?page=4)