U.S. Law - can you be forced to give a password to your computer?

[DataX]

That 11th Circuit Decision posted today by Fubuya is especially interesting. Person used TrueCrypt - which basically (for purposes of this thread) - allows a virtual drive to be encrypted - but has NO FINGERPRINTS - it is impossible for anyone to know (without the password) if that section of the drive is random characters - or actually contains data. This was a big part of the decision - and it seems that much of it rested on the government stating that the drive MAY contain files - no files - nothing to compel to open.

The way TrueCrypt works is pretty cool - you can actually set it up for just this type of situation. In fact - the person could provide a password, but a second part of the drive would remain forever hidden - and impossible to prove (if set up correctly) that it is there.

This is what is called “rubber hose cryptanalysis”. I wouldn’t be surprised that this person is using the two level encryption in this case. The government will never see the real data if it was set up correctly (which if it wasn’t - they’d already have access [barring possible future breakthroughs]). They will get the unencrypted drive alright - with nothing incriminating on it. In fact - the way the order was written in the other case - it would technically still comply with the wording (but not the spirit of) the order. You sort of have to read up on how TrueCrypt works - it is fascinating. Never occurred to me there might be some extra legal benefits as well (knew the practical ones were there).

Someone else has already posted that the forcing of giving the password is against the fifth amendment - but forcing them to decrypt the drive is not (not my opinion, but that is not relevant of course). Simply hide your password in what appears to be an explosive device - when they call the bomb squad to destroy the package - there goes the password. Sort of the opposite of “you ask for miracles - I give you the FBI”. Ps - that is a joke - don’t do it.

Also - part of the way they way they are getting around the fifth amendment is to not allow the govt to use the fact you decrypted the drive against you.

[dzero]

full story

Colorado federal authorities have decrypted a laptop seized from a bank-fraud defendant, mooting a judge’s order that the defendant unlock the hard drive so the government could use its contents as evidence against her.

The development ends a contentious legal showdown over whether forcing a defendant to decrypt a laptop is a breach of the Fifth Amendment right against compelled self incrimination.

The authorities seized the encrypted Toshiba laptop from defendant Ramona Fricosu in 2010 with valid court warrants while investigating alleged mortgage fraud, and demanded she decrypt it. Colorado U.S. District Judge Robert Blackburn ordered the woman in January to decrypt the laptop by the end of February. The judge refused to stay his decision to allow Fricosu time to appeal.

[tellyworth]

Key point from that article:

“They must have used or found successful one of the passwords the co-defendant provided them,” Fricosu’s attorney, Philip Dubois, said in a telephone interview Wednesday.

[DxZero]

@lawbuff

I’m not an attorney but cf.

California v. Byers | 402 U.S. 424 (1971) | Justia U.S. Supreme Court Center

Refering to the Hiibel case of 2004, the above case is not cited, but Berkmer v. McCarty is. That case stated that a traffic stop is NOT custodial for purposes of Miranda.

Another case I have in my head but not the name right now, is that routine booking questions at the station after arrest, name, age, etc., do not trigger the 5th AM, as a comparison to a traffic stop case, but still concerning the 5th.

I like when I find interesting legal threads and see that its a zombie thread and the first answer given was by me and I have absolutely no memory of writing it.

Anywho, I may have been jumbling up a lot of cases in my head two years back, but if I recall the case I was referring to, I don’t think it wasn’t a traffic stop, but rather a stop or questioning on the street that left no doubt that it was custodial interrogation. Like that wasn’t the main issue. Not giving up the name was issue, as in is someone’s name alone enough to be self-incriminating. IIRC, the Suspect was a well known baddie. Refused to give up his name or id. Police brought him in. Yadda yadda. I haven’t really done any criminal work since law school so my memory is probably completely off here, but thats how I remember it. It may have been a Circuit case rather than SCOTUS. I’ll take a look at the cases you cited to see if anything clicks. I have my Crim Law 1 notes around here and I’m sure it was mentioned in that class.

[Leo_Bloom]

@t-bonham@scc.net

Yes, there are keylogger systems that can capture that.

I have read about spy agencys using an a device that registers the acoustic deflection on the windows that match each key that the suspect types.