Your interpretation of the 5th amendment is quite different than it has been historically interpreted by the courts.
For example, in a trial, the prosecutor might subpoena some documents and you cannot refuse to turn over those documents, unless doing so would trigger a 5th amendment assertion. Turning over the documents implicitly testifies to at least two important pieces of information: that the documents exist and that you know about the documents.
So if you're asked for the documents and the prosecution has no evidence that the documents exist or that you know about them, the 5th will cover you.
However if during a police interrogation you admit that the documents exist, when they are subpoenaed, you can't withhold evidence.
I imagine that the 5th will work much the same with passwords. If it is known that you have the ability to unlock the device, refusing to do so will be withholding evidence.
However if revealing the password implicitly reveals the hitherto unknown information that you know the password, 5th will work.
So here's my concern: guy's now been in jail without charge for 18 months. The prosecutors say his guilt is a foregone conclusion, but apparently it's not foregone enough that they're willing to go ahead and prosecute without the contents of his hard drive. They're gonna hold off until they get what they need.
We're starting to get to the edge of the point where this guy might legitimately forget his password. I think we can assume the FBI has been running a common passwords/dictionary attack with common password symbol substitutions for the last 18 months, and apparently they haven't found the answer, so this password is probably a pretty good one that's not based on a word or even a sentence.
If he stays in jail without trial for another two years and then says "I can't remember my password any more", what should we do?
> So here's my concern: guy's now been in jail without charge for 18 months. The prosecutors say his guilt is a foregone conclusion
That's not what the "foregone conclusion" stuff is about, at all. They're not saying "it's obvious he's guilty so the 5th amendment does not apply." The 5th amendment doesn't apply to handing over evidence, period. It's about the circumstances under which handing over evidence (which ordinarily does not implicate the 5th amendment) involves implicit statements or assertions by the defendant (which does). Read the subpoena example in the opinion, it clarifies.
Take this comment as what I think 5th amendment should imply, not how it is currently applied by the courts.
The concept of forgone conclusion is very weird. Imagine that I tell someone that I maintain a diary with log of all the events everyday. Then I tell this to my friends, family, (the police), etc.
Let's say the prosecution can prove that I was at a spot where something illegal happened. If they knew I wrote a diary everyday, they can compel me to produce my diary, which will then be used against me (if needed).
If on the other hand, I tell everyone (and the police) that I have photographic memory and remember anything I see and do, that information is protected by fifth amendment. So in this case, I won't provide something that will be used against me.
It is very weird that when the plain words of the amendment read "compelled in any criminal case to be a witness against himself", it is only thought to include literal production of testimony from mind as confession, while on the other hand, the first amendment is not read literally to allow only freedom of (say) owning a press, the press being a physical printing press.
What is weird is basing a legal system around the constant re-interpretation of documents written hundreds of years ago and the implication that subtle nuances in ancient wording reveal a thus far hidden intent that somehow predicted today's technological advancements, society, their relevance and how these texts should be applied in today's light.
None of that is why I'm bringing it up. I bring it up to point out that we have no reason to believe that the prosecution won't request indefinite detention until he gives up the password, even if it might be impossible for him to do so.
Good point, I definitely can't remember my more complex passwords for more than a month or two if I'm not using them.
It is also not too hard to essentially forget a complex password by either 'blanking it out', or associating it with multiple similar paswords during recall.
There are no easy solutions to encryption in this context, apart from what it clearly tells us: That society needs to focus on prevention and care, and not rely on policing and punishment to keep society safe as much as now.
Civil contempt is coercive, not punitive. In theory, he gets released when it's clear that he won't decrypt the drive even if indefinitely incarcerated. So in principle, in the event you describe, we let him out.
Of course, knowing that he actually has forgotten the password is somewhat tricky, so what would actually happen is anyone's guess.
Perhaps the FBI have unlocked it, but them having the password doesn't prove that the accused had it. My guess is they wouldn't be pushing on with the case if they didn't know for sure that access would 'demonstrate' criminality. Similarly I imagine the accused knows that if they admit access they're going to spend a lot longer incarcerated. An impasse for our times
So if, for example, a person had illicit photos/documents in a safe, then the police couldn't ask them for the combination? Or if they gave the combination the evidence then retrieved would be inadmissible?
Surely it's the pre-existing evidence that [potentially] stands against the accused, not their "speech" that enables access to that evidence.
Who does such an interpretation of The Fifth protect?
As the courts have interpreted it, 5A protects you if they can't even prove the safe is yours, or if otherwise admitting that you know the combination or that you know what's in the safe would result in incriminating testimony. 5A doesn't apply here because they know the device is his, and that prior to his arrest he had regular access to it. It's not incriminating testimony, it's delivery of evidence in a criminal trial subject to a lawful subpoena.
Well, certainly not if the judge is willing to allow indefinite detention without trial. That's one of the key concerns I have with this case. I'm not seeing presumption of innocence play out here.
The west used to mock and deride the USSR for this kind of thing.
There are, as far as I can tell some weaknesses in that argument, at least from a lay perspective.
- There must be evidence that I can unlock the device for the two situations to be equivalent, and the request must be for specific documents known to exist. If they don't exist all evidence found must be invalidated because the cause for the search was invalid.
- If evidence of ability to unlock the device does not exists, but the assumption is that since it's mine I can unlock it, I think the analogy is slightly flawed. Since the ask is now not about producing a specific thing I'm known to possess, I'm indirectly being asked to produce a document (password), albeit not in material form but typed on a keyboard. Since it's never been proved that I actually am able to open it, the situation is not equivalent, but more like there being a safe in my house that nobody has seen me open, no key is know to exist, but since I own the house I am assumed to be able to open it, and I'm held in contempt because I say I can't or won't open it. It's not too uncommon for a house to contain a safe the current owner can't open, but it does not lead to the same situation since it can usually be forced open. The only difference with good encryption is that the option to use force has become increasingly impotent.
- Unlocking a computer without proper limits and auditing of the search is also more like being asked to give access to any document storage rooms I own or have access to. Reason being that unlocking a device will in many cases give access to more than the bare contents of the drive, giving access to emails, Dropbox, and other logged on applications and sessions. Since parallel construction appear to be a thing, it's ripe for abuse.
Maybe there needs to be a process where independent auditors can, under surveillance of the defendants lawyer produce named documents from seized evidence, as giving police and/or prosecutors blanket access to devices entire content could create lots of opportunities to create parallel construction stories for any content found not under the current warrant, and as bizarre parallel construction is, it appears to have been used.
>Your interpretation of the 5th amendment is quite different than it has been historically interpreted by the courts.
Part of the issue seems to be the courts are very proficient in coming up with very interesting interpretations. It feels a lot like a literature or art interpretation class, where everything is BS but a lot of people have a bunch of rules convincing them they aren't. Then again, the founding father's weren't too much different.
Founding fathers: "All men created equally".
Also founding fathers: owns slaves (some at least)
The word "witness" is a legal term with a specific meaning. It requires providing testimonial evidence. The landlord that unlocks the defendant's apartment where the bodies are stored in the fridge is not a "witness" even though he helped the police get evidence.
And here we are, talking about a guy presumed to have some information on his head, arrested for refusing to disclose that information, in a thread about legal professionals creating BS, with somebody arguing that "witness" has a legal meaning that does not cover people disclosing information they have on their heads... Or, at least not on this case.
> arrested for refusing to disclose that information
The information in the guy's head is the password. They're not asking him for the password. They're asking him to perform the action of decrypting the drive. They explicitly told him he could keep the password secret.
Yep, that's really a very good non-BS interpretation that does not harm common sense in any way.
In related murder news, murder suspect detained indefinitely until he shows hidden body to the police. They don't want him to tell them where is the body, they just want him to drive them there so they can dig it up.
Your comparison between decrypting a file and locating a body neatly demonstrates the conflict at the heart of this case. The conflict is formally known as the "foregone conclusion doctrine."
There was an excellent discussion of this case and the principles behind this doctrine in the Washington Post last year:
Orin Kerr does an excellent job explaining why he thinks the doctrine applies to decrypting files. You might enjoy reading it.
The appropriate analogy to this case is not "until he shows hidden body to the police" but "until he opens the door to his garage where they have reason to believe there is a body".
The defendant in question here is not being asked to tell anyone their encryption key. They are, in fact, being asked to deliver a collection of documents they possess.
No, they are being asked to transform a collection of documents they possess, using information they allegedly possess in their mind about those documents, and deliver the product of that transformation.
Because it isn't revealing information that only exists in your mind. Keep in mind the reason the 5th Amendment exists: the prevent the government from having an incentive to coerce false testimony through torture.
An evil government could coerce someone to falsely say "I did it!"
An evil government cannot coerce someone to falsely type a password into a terminal to decrypt files with incriminating evidence. Because if it's false that evidence simply won't exist.
> Keep in mind the reason the 5th Amendment exists: the prevent the government from having an incentive to coerce false testimony through torture.
Thats not the sole purpose of the self-incrimination protection (which is, also, far too focussed in it's protections to meaningfully effect that end, since historically false testimony coerced through torture was very often sought from people other than the person it was used against.)
> An evil government cannot coerce someone to falsely type a password into a terminal to decrypt files with incriminating evidence.
Sure they can, or, rather, if they claim to know already what is on the drive and reject any decryption which does not match their claimed knowledge, they can punish someone for non-compliance until they either tire of punishment or the target somehow manages to produce a result that matches the expectations.
You know what would be handy? If you were to codify these reasons and purposes unambiguously in a single, agreed upon, authoritative place (say, a law book or something), so you don't need to divine meaning from ancient texts and have the same silly discussion every time the subject comes up.
Take a look at the legal system of just about any non-English speaking country, to see how this could possibly work.
(Admittedly, it makes for great film scripts and courtroom scenes, which are valuable and important export-products of the US, but having clearly defined and agreed upon laws and rules is kind of important too)
True. It's also to prevent someone from ever being put in the position of having to choose between lying and self incriminating.
But again, that doesn't apply in this case.
or the target somehow manages to produce a result that matches the expectations.
This is an impossible end state. You might have a point if the password was a one time pad or something like that but that's not the case for the case in question.
You are correct in that as a non-lawyer (I am a non-lawyer as well) you cannot read the law and reliably, confidently understand what it means, much in the same way a non-programmer cannot read read code and understand what it means.
There is a problem with this which is that non-lawyers are required to comply with the law but that's not really the issue here.
If you're trying to argue courts have gone through mental contortions to derive radical insane re-interperetations of the law that completely change its intent and meaning 180 degrees, and that the entire legal orthodoxy has gone through the same contortions in order to be able to practice law in its current state, you can do that and it's reasonable, but you should use better examples like e.g. the commerce clause, not slavery. Slavery was most definitely intentionally allowed, no interesting interpretation necessary.
>Slavery was most definitely intentionally allowed, no interesting interpretation necessary.
Legally yes. I was talking referencing how the founding fathers were not consistent in matching the government they created with some of their prior statements which were part of the reason they were in a position to create the government. Largely I said this to preempt the oft response that the founding father's weren't consistent with their own view of rights.
The police are asking this guy to produce a document that does not currently exist. The police are effectively asking this guy to take a document they do have and is useless (the encrypted hard drive), and using the contents of his own mind to transform it into a document that is useful to them.
Right, but in that case the court is asking for specific documents which it knows exists.
In this case, the court is asking the man to provide evidence which the court is not aware of. And there also might be evidence for other crimes which the court isn't aware of.
If the court knew that the documents existed, he would have been convicted for possession of child porn by now. The court thinks that the documents exist, but obviously they can't prove it.
But you don't yet know that it's evidence of guilt. Additionally, testimony can be counted as evidence, yet the 5th Amendment allows you not to testify if doing so would incriminate you. So something being evidence is not unconditional in needing to be turned over.
Let's say a guy has some documents that he happened to show someone that can implicate him in a crime. The person he showed it to testifies that the guy showed it to him/her. Can he be held until he turns over those documents?
The purpose of the prohibition against testifying against oneself in the 5th amendment is not a protection of one's privacy (as many here seem to believe). It is to precent coerced false confessions. The difference between false testimony and a falsely revealed password is that the testimony is not obviously false but the password will be.
For example, in a trial, the prosecutor might subpoena some documents and you cannot refuse to turn over those documents, unless doing so would trigger a 5th amendment assertion. Turning over the documents implicitly testifies to at least two important pieces of information: that the documents exist and that you know about the documents.
So if you're asked for the documents and the prosecution has no evidence that the documents exist or that you know about them, the 5th will cover you.
However if during a police interrogation you admit that the documents exist, when they are subpoenaed, you can't withhold evidence.
I imagine that the 5th will work much the same with passwords. If it is known that you have the ability to unlock the device, refusing to do so will be withholding evidence.
However if revealing the password implicitly reveals the hitherto unknown information that you know the password, 5th will work.