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

[UltraVires]

@DSYoungEsq

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.

So how is this different than being required to provide a blood sample for DNA comparison? Such giving of a sample will lead the discovery (the DNA test comparison) of evidence against me, but I can’t claim a 5th amendment right in this situation?

[Magiver]

I suspect he can be compelled by a judge to give up the password. Failure to do so would be contempt of court.

[Inner_Stickler]

@jtgain

So how is this different than being required to provide a blood sample for DNA comparison? Such giving of a sample will lead the discovery (the DNA test comparison) of evidence against me, but I can’t claim a 5th amendment right in this situation?

Because your DNA is not testimonial evidence. Your DNA by itself does not prove your guilt or your innocence. Data on a laptop, however, could.

Does your spit have Fifth Amendment rights?

[JRDelirious]

@Magiver

I suspect he can be compelled by a judge to give up the password. Failure to do so would be contempt of court.

I don’t believe a court can find you in contempt for failing to testify against yourself, that’s the point of the argument here, whether demanding that you produce the password is equivalent to demanding that you provide incriminating testimony against yourself.

Me, I want my right to remain silent and that whatever exists only inside my head be beyond the reach of the prosecutor. I don’t care if Charles Manson himself uses the same argment in a case he gets into. Let the State hire better codecracking geeks for the CSI lab.

[Magiver]

@JRDelirious

I don’t believe a court can find you in contempt for failing to testify against yourself, that’s the point of the argument here, whether demanding that you produce the password is equivalent to demanding that you provide incriminating testimony against yourself.

Me, I want my right to remain silent and that whatever exists only inside my head be beyond the reach of the prosecutor. I don’t care if Charles Manson himself uses the same argment in a case he gets into. Let the State hire better codecracking geeks for the CSI lab.

A password is not testimony, its a key to a lock. The information on the computer is evidence.

[UltraVires]

@Inner Stickler

Because your DNA is not testimonial evidence. Your DNA by itself does not prove your guilt or your innocence. Data on a laptop, however, could.
Does your spit have Fifth Amendment rights?

But the password is the same. It by itself does not prove my guilt or innocence. Let’s say my password is “iluvfootball”. That doesn’t incriminate me at all; perfectly legal to love football. But since that password would lead the authorities to discover child porn on my computer, then I think the comparison is the same.

My DNA by itself means nothing, but since giving it would lead to the comparison that it is the same DNA at a murder scene.

I think the two should be the same. My DNA isn’t testimonial, I agree. But neither is my password.

[JRDelirious]

@Magiver

A password is not testimony, its a key to a lock. The information on the computer is evidence.

And like I said in my last post, **whether that is so ** is what the argument in the case is about. You’re conclusively convinced that it is, we’ll see if the court agrees.

[Czarcasm]

@Magiver

A password is not testimony, its a key to a lock. The information on the computer is evidence.

It is a spoken word from a suspect, no matter how you re-word it. If your claim is that it isn’t direct self-incrimination, then you’ve opened up a whole 'nother can of worms. You could, using that argument, compel a suspect to tell you the name of some another person who has the ability to incriminate him. See? It’s not direct self-incrimination.

[Sage_Rat]

@Paul in Saudi

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.

Every investigation to determine and capture a violent and murderous person ever, was a ticking bomb case, no? Once you have information which leads you to suspect that a person intends to cause harm to society, the faster you can find them and (in the case of bombers or unified wackos) their stash of goodies and plans, the better the chance you have of preventing anything from happening.

There’s no “one impressive ticking time bomb” scenario to remember because frankly there’s just so darn many happening every day in the military and particularly in policing. Every drunkard wife beater is a ticking time bomb.

[Sockmunkey]

I think a better analogy would be if the suspect knew the location of evidence that might prove innocence/guilt and he refused to divulge that location.

[Blalron]

People compare it with providing officers the key to your house, but I think a more valid comparison is forcing an alleged murderer to reveal where he buried the bodies. To punish him for not providing an answer would force him to either incriminate or perjure himself.

Providing a password divulges two incriminating bits of information:

(1) That the accused knows of the encrypted contents.
(2) That he is responsible for concealing it.

I don’t see how it’s possible to compel him to divulge this information, unless he is granted immunity.

[Sockmunkey]

Yep, I just said that.

[Sweet_Mercury]

@Musicat

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?

I’m no legal eagle by any stretch, but it does seem that compelling someone to speak against his or her will is a violation of his implicit right to remain silent. Really, the only word a person should ever say to a police officer in response to an accusation of a crime is “lawyer.” Maybe “I do not consent to any search of my person or property” would be acceptable.

This snippet of the article seems to give the same example several of you dopers gave:

"In his ruling, Niedermeier said forcing Boucher to enter his password would be like asking him to reveal the combination to a safe. 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 .”

I’m not at all comfortable with the government’s scare tactic reasoning in it’s appeal. “Well, bad guys and boogiemen might hide things too!” as though crime and all evidence thereof could be restricted to a single encrypted volume. Unless a person is already proven after the fact to be a criminal, he or she enjoys the same freedoms and rights that we paragons of virtue do. That’s the benefit—and consequence—of living in a free society.

[Magiver]

@Czarcasm

It is a spoken word from a suspect, no matter how you re-word it. If your claim is that it isn’t direct self-incrimination, then you’ve opened up a whole 'nother can of worms. You could, using that argument, compel a suspect to tell you the name of some another person who has the ability to incriminate him. See? It’s not direct self-incrimination.

The act of speaking is not testomony unto itself. A password/key is not testimony. The information on the laptop represents evidence and if it is secured through proper legal procedure (such as a warrant) then the court is certainly within it’s authority to execute the warrant. Failure to provide the key, in whatever form, is obstruction of justice. At some point the court will have the laptop breached electronically and if there is evidence against the individual then it will be added to the count of obstruction.

It’s no different than locking a gun or knife in a box and refusing to open it against a court order. Testimony is a declaration or affirmation of facts. Complying with a court order to open a door or unlock a safe is not a declaration of anything regardless of what is behind the door or inside the safe.

[DSYoungEsq]

@jtgain

So how is this different than being required to provide a blood sample for DNA comparison? Such giving of a sample will lead the discovery (the DNA test comparison) of evidence against me, but I can’t claim a 5th amendment right in this situation?

The blood sample is not “testimony.” Duh.

[DSYoungEsq]

@JRDelirious

And like I said in my last post, **whether that is so ** is what the argument in the case is about. You’re conclusively convinced that it is, we’ll see if the court agrees.

And as I have pointed out, the issue has nothing to do with the concept of whether or not the “password” is “testimonial.” That simply isn’t what is at issue. It is most certainly “testimonial” in nature. The only question is whether or not the “testimony” can be reasonably apprehended to lead to the discovery of evidence which would be used against the person. Let’s keep these issues straight, please.

[DSYoungEsq]

@Magiver

The act of speaking is not testomony unto itself. A password/key is not testimony. The information on the laptop represents evidence and if it is secured through proper legal procedure (such as a warrant) then the court is certainly within it’s authority to execute the warrant. Failure to provide the key, in whatever form, is obstruction of justice. At some point the court will have the laptop breached electronically and if there is evidence against the individual then it will be added to the count of obstruction.

It’s no different than locking a gun or knife in a box and refusing to open it against a court order. Testimony is a declaration or affirmation of facts. Complying with a court order to open a door or unlock a safe is not a declaration of anything regardless of what is behind the door or inside the safe.

Before you make statements like this, you really should look up the law on the issue. I suggest reading some Fifth Amendment cases. As I mentioned in my posting that discussed Hiibel, the Supreme Court was willing to accept that the mere production of identity at the request of an officer was “testimony.” If that is testimony, this sure as hell is.

From the Congressional Research Service’s Analysis and Interpretation of the United States Constitution, p. 1396

What the privilege protects against is compulsion of ‘‘testimonial’’
disclosures. Thus, the clause is not offended by such
non-testimonial compulsions as requiring a person in custody to
stand or walk in a police lineup, to speak prescribed words, to
model particular clothing, or to give samples of handwriting, fingerprints,
or blood. A person may be compelled to produce specific documents even though they contain incriminating information.
If, however, the existence of specific documents is not known to the
government, and the act of production informs the government
about the existence, custody, or authenticity of the documents, then
the privilege is implicated. Application of these principles resulted
in a holding that the Independent Counsel could not base a
prosecution on incriminating evidence identified and produced as
the result of compliance with a broad subpoena for all information
relating to the individual’s income, employment, and professional
relationships.

If merely producing requested records can be considered “testimonial” then certainly having to reply by providing a word is “testimonial.”

Please, everyone, stop misusing this concept.

[Magiver]

@DSYoungEsq

Please, everyone, stop misusing this concept.

I think you’ll find this revolves around probably cause and that the concept of tesimony in this respect is whether or not it’s a fishing expedition.

[Gfactor]

@Magiver

The act of speaking is not testomony unto itself. A password/key is not testimony.

No. But that’s not really the issue. Giving the password shows that the witness knows the password, which means he had access to the files. “To be incriminating, the potential testimony must either provide direct evidence of a crime or “furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime.” Hoffman v. United States, 341 U.S. 479, 486 (1951) http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=341&invol=479 and see, http://www.bermanesq.com/pdf/ALIABA8.pdf and Rogers v. United States, http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=340&invol=367

And cf., United States v. Barron, 1993 U.S. App. LEXIS 21226 (9th Cir. 1993):

Appellant moved to suppress admission of the contents of the safe on the ground that his communication providing the officers with the combination to the safe violated his Fifth Amendment rights under Miranda v. Arizona, 384 U.S. 436 (1966), and thereby rendered the subsequent search of the safe unreasonable. The district court ruled that the government could not introduce evidence that the defendant provided the combination of the safe for its testimonial value. However, the district court ruled that the actual contents of the safe could be introduced into evidence because they were obtained pursuant to a valid warrant in full compliance with the strictures of the Fourth Amendment.

If the Court wants to compel the guy’s testimony, it can grant him use immunity, order him to give the password, and hold him in contempt for non-compliance. If he complies, the fact that he revealed the password is not admissible because of the grant of immunity. The contents of the computer is admissible because it’s not his testimony.

The cases on DNA and other physical aspects of the defendant are distinguishable because the court has held that using the defendant’s body, as opposed to compelled communications, as evidence is not testimony:

Under the Fifth Amendment, the government cannot compel a defendant to “be a witness against himself.” U.S. Const. amend. V. “The word ‘witness’ in the constitutional text limits the relevant category of compelled incriminating communications to those that are ‘testimonial’ in character.” United States v. Hubbell, 530 U.S. 27, 34 (2000); see also Baltimore Dep’t of Soc. Servs. v. Bouknight, 493 U.S. 549, 554 (1990); Farmer v. Commonwealth, 12 Va. App. 337,
340-41, 404 S.E.2d 371, 372-73 (1991) (en banc). In short, the privilege against self-incrimination is simply “not concerned with nontestimonial evidence.” Oregon v. Elstad, 470 U.S. 298, 304 (1985); see also United States v. Patane, 542 U.S. 630, 637-38 (2004). As Justice Holmes observed, the privilege against self-incrimination recognizes “a significant difference between the use of compulsion to extort communications from a defendant and compelling a person to engage in conduct that may be incriminating.” Hubbell, 530 U.S. at 34-35 (emphasis added). For this reason, “even though the act may provide incriminating evidence, a criminal suspect may be compelled to put on a shirt, to provide a blood sample or handwriting exemplar, or to make a recording of his voice.” Id. at 35 (footnotes omitted). A suspect may also be compelled “to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.” Farmer, 12 Va. App. at 341, 404 S.E.2d at 373 (quoting Schmerber v. California, 384 U.S. 757, 764 (1966)). The mere “act of exhibiting such physical characteristics” cannot be characterized as testimonial. Hubbell, 530 U.S. at 35 (citing Pennsylvania v. Muniz, 496 U.S. 582, 594-98 (1990)). Though the Fifth Amendment bars “compelling ‘communications’ or ‘testimony’” from a suspect, compulsion that merely makes him “the source of ‘real or physical evidence’ does not violate it.” California v. Byers, 402 U.S.
424, 432 (1971) (citation omitted).

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=va&vol=1037052&invol=1
A more significant problem in this case is that he voluntarily gave his password. *Rogers * held that once a defendant voluntarily gives incriminating evidence, the Fifth Amendment does not prevent the court from requiring him to fill in the blanks. http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=340&invol=367

This is what Kerr is talking about here:

@article from the OP

Orin S. Kerr, an expert in computer crime law at George Washington University, said that Boucher lost his Fifth Amendment privilege when he admitted that it was his computer and that he stored images in the encrypted part of the hard drive. “If you admit something to the government, you give up the right against self-incrimination later on,” said Kerr, a former federal prosecutor.

[Turek]

Maybe I’m being naive here, but if you argue that someone could legally be compelled to provide the password or be held in contempt, what if they could not, in fact, actually do so?

I have a crappy memory. I might have a hard drive that I encrypted 4 years ago. I can no longer remember the password. Am I then liable to be held in contempt in perpetuity because I can’t provide the password?