# 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:** 10\ **Page:** 5
**Author:** ![NotreDame05](https://avatars.discourse-cdn.com/v4/letter/n/90ced4/32.png) [@NotreDame05](https://boards.straightdope.com/u/NotreDame05)\ **Post date:** [January 30, 2012, 6:47pm UTC](https://boards.straightdope.com/t/compelling-production-of-a-password-revisited/589450/81 "2012-01-30T18:47:38Z")
> [@Saint\_Cad](#): > > 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. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [January 30, 2012, 7:14pm UTC](https://boards.straightdope.com/t/compelling-production-of-a-password-revisited/589450/82 "2012-01-30T19:14:09Z")
> [@NotreDame05](#): > > 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. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [January 30, 2012, 7:53pm UTC](https://boards.straightdope.com/t/compelling-production-of-a-password-revisited/589450/83 "2012-01-30T19:53:45Z")
> [@NotreDame05](#): > > 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? ---
**Author:** ![NotreDame05](https://avatars.discourse-cdn.com/v4/letter/n/90ced4/32.png) [@NotreDame05](https://boards.straightdope.com/u/NotreDame05)\ **Post date:** [January 30, 2012, 8:56pm UTC](https://boards.straightdope.com/t/compelling-production-of-a-password-revisited/589450/84 "2012-01-30T20:56:53Z")
> [@David42](#): > > 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. ---
**Author:** ![NotreDame05](https://avatars.discourse-cdn.com/v4/letter/n/90ced4/32.png) [@NotreDame05](https://boards.straightdope.com/u/NotreDame05)\ **Post date:** [January 30, 2012, 9:21pm UTC](https://boards.straightdope.com/t/compelling-production-of-a-password-revisited/589450/85 "2012-01-30T21:21:46Z")
> [@treis](#): > > 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. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [January 31, 2012, 1:17am UTC](https://boards.straightdope.com/t/compelling-production-of-a-password-revisited/589450/86 "2012-01-31T01:17:49Z")
> [@NotreDame05](#): > > _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. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [January 31, 2012, 6:12pm UTC](https://boards.straightdope.com/t/compelling-production-of-a-password-revisited/589450/87 "2012-01-31T18:12:45Z")
> [@treis](#): > > 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. ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [January 31, 2012, 6:45pm UTC](https://boards.straightdope.com/t/compelling-production-of-a-password-revisited/589450/88 "2012-01-31T18:45:58Z")
> [@erislover](#): > > 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). ---
**Author:** ![NotreDame05](https://avatars.discourse-cdn.com/v4/letter/n/90ced4/32.png) [@NotreDame05](https://boards.straightdope.com/u/NotreDame05)\ **Post date:** [January 31, 2012, 7:59pm UTC](https://boards.straightdope.com/t/compelling-production-of-a-password-revisited/589450/89 "2012-01-31T19:59:04Z")
> [@treis](#): > > 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. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [February 1, 2012, 10:11pm UTC](https://boards.straightdope.com/t/compelling-production-of-a-password-revisited/589450/90 "2012-02-01T22:11:22Z")
**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. [Previous page](https://boards.straightdope.com/t/compelling-production-of-a-password-revisited/589450.md?page=4)