"Give up your password." A Fifth Amendment violation or valid law enforcement?

[kanicbird]

@Bricker

First, the fact that he knows the password is itself incriminating;

How is knowing the password incriminating? Would it be any less incriminating if he honestly forgot it?

[Gfactor]

There are some cases on this issue. I don’t have time to find them right now. With any luck, I’ll get a chance tonight.

[DSYoungEsq]

@kanicbird

How is knowing the password incriminating? Would it be any less incriminating if he honestly forgot it?

Knowing the password implies that anything on the laptop is there with your knowledge, since the password prevents those who don’t know it from putting anything on it. It doesn’t have to be a conclusive implication, just a valid one.

And the issue here isn’t whether or not he “forgot” it. The sole issue is this: would providing the password potentially help lead to the discovery of evidence against him? Answer that question yes, and he’s not obligated to divulge it.

[alphaboi867]

@Musicat

How about in the bomb case? If knowing the password might prevent deaths? Would that change anything?

In that case if the government was more concerned with preventing deaths than eventually punishing him then the government could simply grant him immunity from prosecution. Then he could be forced to decrypt the files (or be held in contempt and loose immunity).

[Paul_in_Qatar]

@Musicat

How about in the bomb case? If knowing the password might prevent deaths? Would that change anything?

Has there ever been a real-live case of a “ticking bomb” situation? I cannot bring one to the top of my bubble-memory. On the other hand, I am a little sick.

[Gorsnak]

@DSYoungEsq

Knowing the password implies that anything on the laptop is there with your knowledge, since the password prevents those who don’t know it from putting anything on it. It doesn’t have to be a conclusive implication, just a valid one.

It implies no such thing. That I know the password implies that I know what’s on the laptop only if no one else knows the password, just as having a key to the shed implies that I put the corpse there only if no one else has a key.

[Lemur866]

It seems to me that a demand to provide a password is exactly equivalent to a demand to provide a key or combination for a safe.

If the cops already have a warrant to search your safe, do they have the right to demand that you provide them the combination to that safe? Or can you tell them to go screw, if they want to open the safe they’re going to have to figure it out themselves?

[Paul_in_Qatar]

In the real world, where people use poor-quality passowords, would it be tought for a government computer to try the 1,000 most-popular passwords until one of them hits?

[Menocchio]

@Lemur866

It seems to me that a demand to provide a password is exactly equivalent to a demand to provide a key or combination for a safe.

If the cops already have a warrant to search your safe, do they have the right to demand that you provide them the combination to that safe? Or can you tell them to go screw, if they want to open the safe they’re going to have to figure it out themselves?

IIRC, they do have the right to demand that you provide the combination to a physical safe. However, there’s a difference. In the case of a safe, the police *will * eventually open it. By admitting the combination, you’re only inconveniencing them, so your rights are pretty much moot. It may be impossible to crack an encrypted file, so the defendant’s ability to keep the state from incriminating evidence is still very much in play.

[Revtim]

@Menocchio

IIRC, they do have the right to demand that you provide the combination to a physical safe. However, there’s a difference. In the case of a safe, the police *will * eventually open it. By admitting the combination, you’re only inconveniencing them, so your rights are pretty much moot. It may be impossible to crack an encrypted file, so the defendant’s ability to keep the state from incriminating evidence is still very much in play.

from page 2 of the article linked to in the OP

The government can force a person to give up the key to a safe because a key is physical, not in a person’s mind. But a person cannot be compelled to give up a safe combination because that would "convey the contents of one’s mind,’’ which is a “testimonial” act protected by the Fifth Amendment, Niedermeier said

[Gfactor]

@Revtim

from page 2 of the article linked to in the OP

Indeed, the only case that I found on the safe issue was one where the lower court had suppressed testimony that the defendant gave up the combination, but admitted the safe’s contents into evidence. The 9th Circuit affirmed the lower court’s decision to admit the contents, and the prosecution did not appeal the ruling about the combination.

[Arnold_Winkelried]

Suppose a person is subjected to a search warrant. The person has a safe with a combination. The authorities ask him to give the combination and the person subject to the search warrant replies ‘I know the combination but I refuse to give it to you.’ Is the person breaking any laws?

In the case of the password for an encrypted hard drive, the police are stuck without the password, so it’s a little different.

Another question - can the police have an “open-ended” search warrant, for example a warrant to search any bank safe-deposit box a suspect might own. If such a thing exists (which I doubt), the next question would be is the person legally obligated to reveal the existence of any safe-deposit box?

As far as the password goes, I’m sure the law would say different, but in my opinion, if the police have a search warrant for a computer hard drive, and the drive is encrypted, and the owner of the hard drive says “I know the password but I refuse to give it to you”, then the person should be suspect to penalties similar to the penalties for something like refusing to compy with a search warrant.

[Arnold_Winkelried]

A quote from the article mentioned in the OP:

Lee Tien, senior staff attorney at the Electronic Frontier Foundation, a civil liberties group, said encryption is one of the few ways people can protect what they write, read and watch online. “The last line of defense really is you holding your own password,” he said. “That’s what’s at stake here.”

What Lee Tien is trying to say is that a citizen should be able to keep information safe from any search warrant. I don’t think I agree with that. Instead there should be caution in granting search warrants.

[Bricker]

@DSYoungEsq

Knowing the password implies that anything on the laptop is there with your knowledge, since the password prevents those who don’t know it from putting anything on it. It doesn’t have to be a conclusive implication, just a valid one.

And the issue here isn’t whether or not he “forgot” it. The sole issue is this: would providing the password potentially help lead to the discovery of evidence against him? Answer that question yes, and he’s not obligated to divulge it.

Then the question becomes: can the government provide use immunity and defeat the Fifth Amendment claim?

[iamthewalrus_3]

A logical argument (not legal) is: If he made up his own language and wrote all his notes in this made up language, would he be required to translate it for the police when they asked what was in the papers? It seems to me that he clearly would not.

If not, then he shouldn’t have to give up the key. The fact that a machine assists in the translation shouldn’t make a difference.

By the way, this is a great reason for using TrueCrypt, which allows you to have multiple layers of encryption secured by different keys, and there is no way to tell whether a given key is the “deepest” or “important” one, or even if there are multiple keys. An encrypted volume is indistinguishable from random data.

Terrorists and pedophiles take note.

[KGS]

@Musicat

Wouldn’t it be funny if his password was “password”?

Actually, his password is probably “IDIDITIFOOLEDTHEMALL.”

[DSYoungEsq]

@Gorsnak

It implies no such thing. That I know the password implies that I know what’s on the laptop only if no one else knows the password, just as having a key to the shed implies that I put the corpse there only if no one else has a key.

You are confusing the concept of A permissible inference with THE ONLY permissible inference. The fact that you know the password can be used to add to the conclusion that you know what’s on the laptop. It isn’t conclusive, as I stated, but it doesn’t have to be.

[DSYoungEsq]

@Bricker

Then the question becomes: can the government provide use immunity and defeat the Fifth Amendment claim?

Well, I wouldn’t see why not. I don’t see the password as being any different than any other information. Once they have promised that anything the password leads to can’t be used against him, he should have no reason to apprehend any further action against him from divulging it.

[Lemur866]

I’m not sure I understand the distinction between testimonial evidence and other evidence. So, suppose a person can’t be forced to tell the cops the combination of a safe. But he can be forced to give the cops a key to the safe? But how is that different than the cops asking “Where’s the key to the safe?”, and the defendant refusing to answer?

[Gfactor]

@KGS

Actually, his password is probably “IDIDITIFOOLEDTHEMALL.”

or . . .

Richard Jewell appeals his judgment of conviction and sentence. The parties have waived oral argument and this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

In 1999, a jury convicted Jewell of unlawfully shipping child pornography in interstate commerce by means of a computer in violation of 18 U.S.C. § 2252(a)(1)(B). The district court sentenced Jewell to 188 months of imprisonment and three years of supervised release, and the court imposed a $ 100 special assessment.

The district court properly denied Jewell’s motion to prevent the government from using or referring to sexually explicit computer passwords, file names, and account names. Under Fed. R. Evid. 403, a court may exclude relevant evidence whose probative value is substantially outweighed by the danger of unfair prejudice to the defendant. United States v. Layne, 192 F.3d 556, 573 (6th Cir. 1999), cert. denied, 529 U.S. 1029, 146 L. Ed. 2d 330, 120 S. Ct. 1443 (2000). Thiscourt reviews for an abuse of discretion the district court’s ruling on the admissibility of evidence under Rule 403. Id. The evidence challenged under this rule is viewed in the light most favorable to its proponent, maximizing its probative value and minimizing its prejudicial effect, and the district court enjoys broad discretion in balancing the probative value against its potential prejudicial impact. Id. Evidence that is prejudicial only in the sense that it paints the defendant in a bad light is not unfairly prejudicial pursuant to Rule 403. United States v. Sanders, 95 F.3d 449, 453 (6th Cir. 1996).

The district court did not abuse its discretion in denying Jewell’s motion. At trial, the government introduced computer records, which reflected Jewell’s activity in on-line chat rooms. The screen names of Jewell’s chat partners were often sexually explicit, as were the names of the files that he stored on his computer. While Jewell argues that the admission of these sexually explicit names into evidence unfairly prejudiced him, his argument is largely based on the fact that this evidence placed him in a bad light. Further, the evidence was relevant and highly probative because it demonstrated Jewell’s knowledge of the sexually explicit nature of the photographs and the chat rooms in which he participated.

*United States v. Jewell *, 16 Fed. Appx. 295; 2001 U.S. App. LEXIS 10925 (6th Cir. May 23, 2001) :eek: