If a password is required to access your personal collection of computer files, can the government force you to reveal it? Or would that be self-incrimination and a violation of the 5th Amendment?
Sebastien Boucher was caught taking a laptop across the border when the guards thought he might have illegal files on it. But he refused to let them look and without a password, they are stymied.
But the government is appealing:
So what do our legal eagles think?
Note that this case doesn’t have any national security implications, but it occurs to me that if it did (a suspected terrorist having encrypted bomb plans, for example) would that change anything?
Sometimes, defense of individual liberty means that the individual gets the upper hand.
Providing the state with the advantage is not justice in a state that values individual rights.
The police can still search his home for evidence of the password; they can do whatever they like to extrapolate it; they can bring every bit of technology they like to bear on it. They just can’t force him to incriminate himself.
I am firmly pro-state and I agree with this decision.
What? You’re going to tell him that he’ll be in contempt of court if he doesn’t tell you the password? I think he’ll go to jail for contempt of court rather than give you the password- he’s already going to jail for, you knowing, making and placing a bomb.
Oh no, if we naively support Fifth Amendment rights, then drug dealers and pedophiles may use them… perhaps even terrorists! I mean, I was ok with the Fifth Amendment before, until I realized those categories were not explicitly excluded. But now, well, I’ve got to think of the children, of course. Clearly, legal protection is only meant to extend to petty offenders and those already known beforehand to be innocent of any crime.
I don’t agree with the ruling. To me it seems like refusing to allow a legally obtained search warrant. Its like saying that since the suspect knows that there are incriminating items in his house he can deny entry to protect his 5th amendment rights. I don’t think the government should be allowed to demand your password on a whim but if it rises to the level where a search warrant is legally obtained then I see no violation of the 5th amendment.
How is this different than some other method of securing things? If the guy had a locked suitcase or briefcase, could the guards make him open it? It seems like if the answer to that question is yes, the answer to this question should be yes, and if the answer to that is no, the answer to this should be no.
If you have a locked safe in your house and the police have a search warrant, are you required to open it for them? I wouldn’t think so, but it would seem to me that the police would then have the right to get it open anyway they were able to.
Yeah, if the cops have a search warrant, I don’t see the big deal. I can see where the cops couldn’t compel him to find the files for them, but access to a computer is no different than access to a file cabinet.
The police have the right to confiscate the computer, remove the hard drive and examine it to their heart’s content-but they can’t extend a search warrant to someone’s mind, which is where that password currently resides.
I suppose the guy can say he forgot his password. They can’t compel him to remember it, just like they can’t compel him to remember where he hid the key to his file cabinet.
I don’t see the problem here. Giving the authorities your password (after being presented with a lawful warrant) is not testimonial in nature. To me it would be like giving a blood sample for DNA comparison. You can’t refuse that on 5th amendment grounds…
No, the apt comparison with refusing to allow a search warrant would be if he refused to GIVE them the laptop itself.
This case is more accurately compared with refusing to give the officers a key to the house they want to search. They can still get in to conduct their search, they just will have to brute force it (with the property damage likely being at the suspect’s expense). They have the laptop, they just have to brute force their way in. Trickier than breaking down the door to a house? You bet.
You can pry open a locked cabinet, and you can take blood from a suspect-what you can’t do(short of using torture) is force someone to remember something that they have “forgot”, and all the court rulings in the world can’t change that until someone comes up with a reliable mind-reading technique.
That depends on his password. What if the password itself is incriminating, like “I am plotting the violent overthrow of the US government” or “I hid the explosives under the back porch”? Who gets to decide if the password is testimonial or not?
Whether or not that is true is irrelevant to the question both the OP and jtgain are posing. Their concern is whether or not the state can try to compel divulgence of the password. Your statement is the functional equivalent of saying, “you can lead a horse to water, bwana, but you canna make him drink!” It’s true, but relatively irrelevant from a legal standpoint (except when we discuss just how long you can spend in the pokey while the court system exerts pressure upon you to cough up the information).
As to the OP and jtgain:
So the rubric requires that there be a belief that the statement requested could be used to develop further evidence against the person, and that belief has to be reasonable.
Here, the sole reason for the requested password is to enable further search for the purpose of trying to see if the person in question is or has been violating the law. Thus, he would have a reasonable apprehension that the requested password could be used to develop further evidence against him. It is irrelevant whether or not it actually would result in that, so long as his belief is reasonable, which, here, it certainly would be.
If the person here could be compelled to produce the password, then presumably he could be compelled to provide consent to a search of his trunk during a traffic stop. The whole concept is quite silly, when put in those terms.
Oops, forgot to answer jtgain. As the court in Hiibel notes, a statement like this is certainly “testimonial” in nature; the Court there noted that even Mr. Hiibel’s identity was “testimonial.” All it needs to do is “disclose information” which it most assuredly does (which is why they want it in the first place).
First, the fact that he knows the password is itself incriminating; he can’t argue that he lent the laptop to a friend and, unbeknownst to him, the friend downlaoded tons of kid porn and encrypted all the files if it turns out he knows the password himself.
And of course knowing the password will enable the government to prove the presence of kid porn files on the laptop, which is inculpatory even if he doesn’t provide the password himself.