# "Give up your password." A Fifth Amendment violation or valid law enforcement? **URL:** \ **Category:** Great Debates\ **Created:** [January 16, 2008, 5:18pm UTC](https://boards.straightdope.com/t/give-up-your-password-a-fifth-amendment-violation-or-valid-law-enforcement/433756 "2008-01-16T17:18:51Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Musicat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/musicat/32/20189_2.png) [@Musicat](https://boards.straightdope.com/u/Musicat)\ **Post date:** [January 16, 2008, 5:18pm UTC](https://boards.straightdope.com/t/give-up-your-password-a-fifth-amendment-violation-or-valid-law-enforcement/433756/1 "2008-01-16T17:18:51Z")
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. [http://www.washingtonpost.com/wp-dyn/content/article/2008/01/15/AR2008011503663.html?wpisrc=newsletter&wpisrc=newsletter](http://www.washingtonpost.com/wp-dyn/content/article/2008/01/15/AR2008011503663.html?wpisrc=newsletter&wpisrc=newsletter) > [@](#): > > On Nov. 29, Magistrate Judge Jerome J. Niedermeier ruled that compelling Sebastien Boucher, a 30-year-old drywall installer who lives in Vermont, to enter his password into his laptop would violate his Fifth Amendment right against self-incrimination. “If Boucher does know the password, he would be faced with the forbidden trilemma: incriminate himself, lie under oath, or find himself in contempt of court,” the judge said. > > \ > > “The consequence of this decision being upheld is that the government would have to find other methods to get this information,” said Marc Rotenberg, executive director of the Electronic Privacy Information Center. “But that’s as it should be. That’s what the Fifth Amendment is intended to protect.” But the government is appealing: > [@](#): > > Mark D. Rasch, a privacy and technology expert with FTI Consulting and a former federal prosecutor, said the ruling was “dangerous” for law enforcement. “If it stands, it means that if you encrypt your documents, the government cannot force you to decrypt them,” he said. “So you’re going to see drug dealers and pedophiles encrypting their documents, secure in the knowledge that the police can’t get at them.” 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? ---
**Author:** ![Happy\_Scrappy\_Hero\_Pup](https://avatars.discourse-cdn.com/v4/letter/h/ea5d25/32.png) [@Happy\_Scrappy\_Hero\_Pup](https://boards.straightdope.com/u/Happy_Scrappy_Hero_Pup)\ **Post date:** [January 16, 2008, 5:45pm UTC](https://boards.straightdope.com/t/give-up-your-password-a-fifth-amendment-violation-or-valid-law-enforcement/433756/2 "2008-01-16T17:45:45Z")
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. ---
**Author:** ![Musicat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/musicat/32/20189_2.png) [@Musicat](https://boards.straightdope.com/u/Musicat)\ **Post date:** [January 16, 2008, 5:48pm UTC](https://boards.straightdope.com/t/give-up-your-password-a-fifth-amendment-violation-or-valid-law-enforcement/433756/3 "2008-01-16T17:48:12Z")
[QUOTE=Happy Scrappy Hero Pup] I am firmly pro-state and I agree with this decision. [/QUOTE] How about in the bomb case? If knowing the password might prevent deaths? Would that change anything? ---
**Author:** ![appleciders](https://avatars.discourse-cdn.com/v4/letter/a/85f322/32.png) [@appleciders](https://boards.straightdope.com/u/appleciders)\ **Post date:** [January 16, 2008, 5:57pm UTC](https://boards.straightdope.com/t/give-up-your-password-a-fifth-amendment-violation-or-valid-law-enforcement/433756/4 "2008-01-16T17:57:10Z")
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. ---
**Author:** ![Indistinguishable](https://avatars.discourse-cdn.com/v4/letter/i/90ced4/32.png) [@Indistinguishable](https://boards.straightdope.com/u/Indistinguishable)\ **Post date:** [January 16, 2008, 5:58pm UTC](https://boards.straightdope.com/t/give-up-your-password-a-fifth-amendment-violation-or-valid-law-enforcement/433756/5 "2008-01-16T17:58:59Z")
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. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [January 16, 2008, 6:13pm UTC](https://boards.straightdope.com/t/give-up-your-password-a-fifth-amendment-violation-or-valid-law-enforcement/433756/6 "2008-01-16T18:13:24Z")
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. ---
**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 16, 2008, 6:16pm UTC](https://boards.straightdope.com/t/give-up-your-password-a-fifth-amendment-violation-or-valid-law-enforcement/433756/7 "2008-01-16T18:16:08Z")
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. ---
**Author:** ![Raygun99](https://avatars.discourse-cdn.com/v4/letter/r/6f9a4e/32.png) [@Raygun99](https://boards.straightdope.com/u/Raygun99)\ **Post date:** [January 16, 2008, 6:17pm UTC](https://boards.straightdope.com/t/give-up-your-password-a-fifth-amendment-violation-or-valid-law-enforcement/433756/8 "2008-01-16T18:17:23Z")
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. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [January 16, 2008, 6:31pm UTC](https://boards.straightdope.com/t/give-up-your-password-a-fifth-amendment-violation-or-valid-law-enforcement/433756/9 "2008-01-16T18:31:02Z")
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. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [January 16, 2008, 6:31pm UTC](https://boards.straightdope.com/t/give-up-your-password-a-fifth-amendment-violation-or-valid-law-enforcement/433756/10 "2008-01-16T18:31:56Z")
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. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [January 16, 2008, 6:34pm UTC](https://boards.straightdope.com/t/give-up-your-password-a-fifth-amendment-violation-or-valid-law-enforcement/433756/11 "2008-01-16T18:34:11Z")
[QUOTE=Czarcasm] 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. [/QUOTE] 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. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [January 16, 2008, 6:36pm UTC](https://boards.straightdope.com/t/give-up-your-password-a-fifth-amendment-violation-or-valid-law-enforcement/433756/12 "2008-01-16T18:36:15Z")
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… ---
**Author:** ![JayRx1981](https://avatars.discourse-cdn.com/v4/letter/j/71e660/32.png) [@JayRx1981](https://boards.straightdope.com/u/JayRx1981)\ **Post date:** [January 16, 2008, 6:37pm UTC](https://boards.straightdope.com/t/give-up-your-password-a-fifth-amendment-violation-or-valid-law-enforcement/433756/13 "2008-01-16T18:37:01Z")
[QUOTE=Loach] 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. [/QUOTE] 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. I agree with the ruling. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [January 16, 2008, 6:40pm UTC](https://boards.straightdope.com/t/give-up-your-password-a-fifth-amendment-violation-or-valid-law-enforcement/433756/14 "2008-01-16T18:40:30Z")
[QUOTE=jtgain] 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.. [/QUOTE] 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. ---
**Author:** ![Pleonast](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pleonast/32/1183_2.png) [@Pleonast](https://boards.straightdope.com/u/Pleonast)\ **Post date:** [January 16, 2008, 6:44pm UTC](https://boards.straightdope.com/t/give-up-your-password-a-fifth-amendment-violation-or-valid-law-enforcement/433756/15 "2008-01-16T18:44:42Z")
[QUOTE=jtgain] Giving the authorities your password (after being presented with a lawful warrant) is not testimonial in nature. [/QUOTE] 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? ---
**Author:** ![kanicbird](https://avatars.discourse-cdn.com/v4/letter/k/5f8ce5/32.png) [@kanicbird](https://boards.straightdope.com/u/kanicbird)\ **Post date:** [January 16, 2008, 6:54pm UTC](https://boards.straightdope.com/t/give-up-your-password-a-fifth-amendment-violation-or-valid-law-enforcement/433756/16 "2008-01-16T18:54:56Z")
Does he have the right to remain silent? ---
**Author:** ![Musicat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/musicat/32/20189_2.png) [@Musicat](https://boards.straightdope.com/u/Musicat)\ **Post date:** [January 16, 2008, 6:59pm UTC](https://boards.straightdope.com/t/give-up-your-password-a-fifth-amendment-violation-or-valid-law-enforcement/433756/17 "2008-01-16T18:59:55Z")
Wouldn’t it be funny if his password was “password”? ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [January 16, 2008, 7:04pm UTC](https://boards.straightdope.com/t/give-up-your-password-a-fifth-amendment-violation-or-valid-law-enforcement/433756/18 "2008-01-16T19:04:08Z")
[QUOTE=Czarcasm] 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. [/QUOTE] 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** : The Supreme Court restated the law on the Fifth Amendment not all that long ago in [_Hiibel v. Sixth Judicial District Court of Nevada_](http://supct.law.cornell.edu/supct/html/03-5554.ZO.html), 542 U.S. 177 (2004). > [@United States Supreme Court](#): > > As we stated in Kastigar v. United States, 406 U.S. 441, 445 (1972), the Fifth Amendment privilege against compulsory self-incrimination “protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.” Suspects who have been granted immunity from prosecution may, therefore, be compelled to answer; with the threat of prosecution removed, there can be no reasonable belief that the evidence will be used against them. See id., at 453. 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). ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [January 16, 2008, 7:06pm UTC](https://boards.straightdope.com/t/give-up-your-password-a-fifth-amendment-violation-or-valid-law-enforcement/433756/19 "2008-01-16T19:06:28Z")
[QUOTE=kanicbird] Does he have the right to remain silent? [/QUOTE] Um, that’s the whole question the OP poses, in a nutshell. :smack: ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 16, 2008, 7:37pm UTC](https://boards.straightdope.com/t/give-up-your-password-a-fifth-amendment-violation-or-valid-law-enforcement/433756/20 "2008-01-16T19:37:46Z")
There are two issues here: 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. [Next page](https://boards.straightdope.com/t/give-up-your-password-a-fifth-amendment-violation-or-valid-law-enforcement/433756.md?page=2)