where an appeals court ruled that since the individual had initially cooperated with law enforcement, he had to continue to cooperate to the extent of decrypting his disk.
Leaving aside the disk issue and searches at the border, my question is: does a person have to refuse all cooperation with law enforcement to preserve one’s right against self-incrimination? Apparently one can’t say enough cooperation is enough. The courts say it is all or nothing. If I tell the nice police officer my name, can I refuse to answer other questions?
Can someone explain this to me?
Thanks
True. This has been discussed here previously. I wish I could remember the reasoning behind it. I hope someone will come around to explain.
Yes. This too was discussed here. I think the reason was that identifying oneself is just a basic piece of info which - without other evidence - can’t possibly get one into trouble. In fact, IIRC, one is required to give this info to the nice police officer if he asks for it.
The OP posted a link to the original ruling in the case, not the appeals court ruling that reversed it. Offering up this link for those who are interested in learning about the case.
The basic facts of the case are this. Police seized his laptop after finding evidence of child porn on it during a border inspection. They later discovered another drive on the laptop that was PGP encrypted. They wanted to compel him to provide the password, which the appeals court has ordered him to do.
I take a different view of the facts than the OP did. The government argues that by asking for the password, what they are essentially asking for is access to documents, just as if they were handing a supbpoena for access to paper documents. The government has argued that they already have possession of the files, and they can link the defendant to them, so they are not compelling him to provide new evidence against himself. The defendant, of course, is arguing that he’s being asked to provide testimony against himself, and that fifth amendment protections apply.
The case is Hiibel v. Nevada–and technically, it holds that it’s constitutional for a state to have a law requiring people identify themselves to police on request. IANAL, but I understand some states do have such a law, while others do not.
The most common analogy here is to a physical key–there’s no fifth amendment bar to the police demanding the key to your house (with a warrant/subpoena, of course). That is contrasted with testimony–which the fifth amendment does protect. This court decided the password should be treated like a key.
IANAL, but IIRC that in this case, nobody disputed it was his laptop (and the police claim they already saw the images at a border inspection)–which may well limit how far this ruling goes—some articles I read suggested that there would be a fifth amendment claim if giving up the password would imply an admission that he owned it-compelling some admission beyond mere access to something the defendant already admits owning.
Also, it’s not an appeals court. It’s a district (trial) court reversing the order of a magistrate judge.
I don’t know if it’s legally significant, but the filesystem that is encrypted is the one that contains the files they originally discovered. The authorities discovered the files, and then shut off his laptop. When they turned it on again, days later, they discovered that they could no longer access the files without the password.
thanks for the better link showing the original ruling had been reversed. As I understand it now, if one begins to cooperate with the police one can’t legally stop. Cooperation does not begin with the basics-name, but with anything the police might find useful beyond basic identification.
This better explains the threads where legal types routinely advise never answering any questions from a police officer. Not only will any information you provide be used against you, but once you start you can’t stop.
As usual, the dope comes through. It took a long time for me to understand the details, but now they begin to make sense.