Encryption and Fifth Amendment

Let’s say I maintained a journal on my computer and encrypted it to prevent anyone from seeing it.

If my computer were seized by the authorities, could I refuse to give out the encryption key on Fifth Amendment grounds, since I could have reason to believe that what I would reveal could have incriminating information?

You can always exercise your Fifth Amendment rights. :smiley:

That said, for the authorities to get to the point to seize your computer, they probably would already have enough evidence by other means to get you convicted.

No, Duckster, it’s easier by an order of magnitude to get a search warrant than a conviction in court. I doubt that the specific encryption key issue has ever been litigated, but just on general principles, I can’t imagine that they could force you to give it to them.

I don’t think it would matter, I’m sure the fed’s have tools to break any domestic encryption schemes.

No Blalron, the fifth ammendment only protects you from being a witness against yourself. Whats in the computer is now called evidence and they can get a warrant for that. Your refusal to give the encryption key can be noted as a fifth ammendment exercise (which can be debatable in court) but there is no encryption code that cannot be broken. However, if the court finds that the fifth is not involved, you may be facing obstruction charges.

The seizure of personal files under a search warrant has been challenged on Fifth Amendment grounds, with varying degrees of success. Generally, IIRC, such seizures do not violate the Fifth Amendment unless special circumstances apply.

As for encryption, I found the following

I’ve read that a personal code, one you didn’t have to share, could indeed be unbreakable. You do, IIRC, need to have a good memory.
Maybe it was on TLC or something. I’ll try to remember.
:slight_smile:
Peace,
mangeorge

Whoops! URL missing! http://www.lectlaw.com/files/cri05.htm (@*&%$! embedded returns!)

What would be the legal ramifications of denying memory of the decryption passphrase?

(?) amnesia. Amnesia brought on by a stressful situation. Sound’s good to me. Contempt of court doesn’t, tho. :wink:

Your honor, the siezed computer in question is used in a home buisness that I run. You see, I sell collections of random data to computer and scientific researchers, saving them the effort of having to generate such data themselves. The so called “encrypted” files on that computer are nothing more than files downloaded from the internet and run through an encryption program to randomize them. I have no passphrases to give, as I merely tap a few keys without rhyme or reason when I run the program.

Well, they are 200 years ahead of the rest of the world in mathematical theory :wink:

The fifth amendment only applies to self-incriminating testimonial behavior, e.g., the communication of a suspect’s thoughts. That’s why the police can compel you to walk a straight line on a DWI stop, to give hair and skin samples for DNA testing, and stand in a lineup.

Forcing a suspect to reveal a password does not involve communicating a thought that could be self-incriminating – it merely communicates the method for accessing certain files. It isn’t any more an incriminating thought than requiring a suspect to unlock his front door so that his house might be searched.

The only way around that is if somehow knowledge of the password itself would, standing alone and independent of the content of the encrypted files, tend to establish guilt. Like maybe if an accomplice gave a deathbed confession where he said “only my partner knows the password” – in that situation, knowing the password would incriminate you regardless of what the files contained.

Actually, now that I think about it some, you may be able to invoke the fifth, not because of the content of the files themselves, but because knowledge of the password would tend to establish you had a hand in creating those files. That’s obviously going to vary a lot with the facts of the individual case – if the files are on your PC and no one else had access to that PC, then there’s no need to prove that anyone but you had a hand in creating files located on that PC; in that case, you probably wouldn’t have a fifth amendment defense to revealing the password.

N.B.: There is a fourth amendment issue present; for the police to demand access to your files, they’ll have to comply with all of the constitution’s search and seizure requirements. Assuming they do (say, by getting a valid search warrant), I don’t think there’s much of a fifth amendment case to be made.

Well, if I ever have an occasion to devise a passphrase to shield all my encrypted files from law enforcement, I’ll be sure and select a passphrase which is in and of itself a confession to a crime including details only the person who committed said crime would know.

That way, I could take the 5[sup]th[/sup] in good faith.

(thinking)

I suppose the court could then find a person who does not speak English, and require me to provide the password for them to input. Drat.

Well, there’s always steganography.

AmbushBug

A properly implimented one-time pad cannot be broken.

Just to followup on my last post: any fifth amendment issues could be completely removed by the prosecution offering use immunity for giving the password.

IOW, say your knowledge of the password would tend to indicate your participation in a crime. The prosecution can say “we won’t present evidence to the court that you knew the password” and then the court can compel you to turn the password over.

Actually, that should be “we won’t present evidence to the court that you told us the password.” They can still develop that information independently – if they later find the password written in a desk drawer, for example (and assuming the search of the desk drawer was legal).

But Dewey, isn’t it true that the Fifth Amendment protects you not only from testifying against yourself, but also from being compelled to produce evidence against yourself? I mean, the cops can search your apartment with a warrant, but they can’t say “Tell us where you keep your drugs”, or “Tell us where you keep the incriminating letters”, can they? How is providing an encryption key any different?

Theoretically, that’s about it. In practice, such a thing doesn’t exist. The issue is not whether your encryption scheme is breakable (it is), but how long it will take to break it.

The fifth amendment doesn’t prevent you from being compelled to produce evidence – the police (with probable cause) can require you to give them blood and hair samples, to stand in a lineup, and to speak words for purposes of voice identification.

The examples you cite, though, contain testimonial items – if the cops asked you “where do you keep your drugs,” then your answer will not only tell them where the drugs are, but will also be an admission that you possess illegal drugs. It is for this latter reason that the question would be prohibited by the fifth amendment (assuming, of course, that you invoke it).

The fifth amendment, like the first amendment, is often misunderstood on bulletin boards like this one as being broader than it actually is. You can’t just invoke the fifth for anything you’re uncomfortable talking about, even though most people think you can.