IANAL but like reading about cases like this. From what I've seen in other cases this would be a very strange situation.
They wouldn't specifically subpoena your password. A subpoena could be issued to you and you could be required to testify about things and potentially one of the questions could be to divulge your password. Now the fifth amendment protects against self-incrimination so your best bet is to simply not answer anything and invoke the fifth. Because that protects you from testifying to things that could incriminate you, and not just those things that will incriminate you. Of course once they have the password you never know what someone might find which is why you should take the fifth and not testify to anything.
Courts can legally get around your fifth amendment protection and compel you to provide the password and access but in doing so they must also grant you immunity against anything they may find. The courts have upheld that your testimony no longer can incriminate you so you can be held to testify accurately. If you do not you would be in contempt of the court. Generally in this situation they have an idea of the data or information that they want and you are a small fish and they are going after someone much bigger.
The other similar scenario would be instead of a subpoena for your testimony they would get a warrant to search your system. This is where it gets kind of interesting because when they have a valid warrant they are allowed entry into the device but they are still not allowed to force you to testify against yourself as in divulging a password. They can attempt to crack the password but they cannot force you to tell them what it is. On the other hand if you are using a form of biometric security because that is not considered testimony they can force you to use your fingerprint or face scan or other biometrics to open it up. This is a very important distinction when you're considering the security of your data especially against law enforcement searches.
I travel internationally a fair amount and so what I've read about this it gets into more of a murky area. A lawyer would probably provide the best advice because there is what is constitutionally allowed to happen in what really does happen and the ultimate question of how much money do you want to spend to defend your constitutional rights.
The courts generally side with the people that open ended searches without any kind of suspicion are not constitutional. Of course that does not stop the government from doing it and waiting for the courts to rule in every specific scenario. Because we have a strange system where we have officials that are sworn to uphold the constitution but they're not required to seek clarity before implementing a policy that could violate it. They have no repercussions for violating it the first time. Which generally means that violated it thousands of times until they hit the one person with the money to challenge them.
Also at the border US citizens are different than non US citizens in what their requirements are. For example a US citizen cannot be denied entry because they do not want to cooperate with a border investigation. The border patrol will tell you they can deny you entry but that is completely false. They can hold the suspicious items but they cannot hold you as a person and block your entry if you can establish your US citizen usually with your passport. This includes failing to disclose a password to your electronic device they can hold the device but they cannot hold you.
If you are not a US citizen they can deny you entry for any reason at all even if you have a valid visa.
My best suggestion for anyone who is concerned about electronic device searches is back up the device when you're outside the country, wipe it, Transit the border and let them do a search on a device that has nothing and then restore the device when you're on the other side. Because this whole charade about meeting to search an electronic device for electronic contraband is idiotic what I can simply send it through the internet ether around every access control.
>Because this whole charade about meeting to search an electronic device for electronic contraband is idiotic what I can simply send it through the internet ether around every access control.
What you can't do is send it through the internet without them seeing it. They may not block it. They may not "confiscate" it. But they still get the intel from it.
At least, I assume they do. I think most of us assume that.
If the courts are giving you immunity, I think you have to have immunity from all levels of government. Otherwise your testimony at one level could incriminate you at another, right? I've never heard of this type of scenario, so maybe some precedent exists.
Edit: why downvote? I'm generally curious about how they handle immunity with multiple levels of overlaping jurisdiction for most crimes.
IANAL, but, my understanding is that if a court rules that the Fifth Amendment does not protect against providing a password (if they already know what's there from other sources, etc.), the individual may be compelled to comply with the subpoena.
I reckon pleading 5 and not remembering are two different things. The fact of not remembering could be used as evidence? But 5 means you don’t need to explain and they cannot bring it up in court?
They wouldn't specifically subpoena your password. A subpoena could be issued to you and you could be required to testify about things and potentially one of the questions could be to divulge your password. Now the fifth amendment protects against self-incrimination so your best bet is to simply not answer anything and invoke the fifth. Because that protects you from testifying to things that could incriminate you, and not just those things that will incriminate you. Of course once they have the password you never know what someone might find which is why you should take the fifth and not testify to anything.
Courts can legally get around your fifth amendment protection and compel you to provide the password and access but in doing so they must also grant you immunity against anything they may find. The courts have upheld that your testimony no longer can incriminate you so you can be held to testify accurately. If you do not you would be in contempt of the court. Generally in this situation they have an idea of the data or information that they want and you are a small fish and they are going after someone much bigger.
The other similar scenario would be instead of a subpoena for your testimony they would get a warrant to search your system. This is where it gets kind of interesting because when they have a valid warrant they are allowed entry into the device but they are still not allowed to force you to testify against yourself as in divulging a password. They can attempt to crack the password but they cannot force you to tell them what it is. On the other hand if you are using a form of biometric security because that is not considered testimony they can force you to use your fingerprint or face scan or other biometrics to open it up. This is a very important distinction when you're considering the security of your data especially against law enforcement searches.