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5th Amendment rights and encryption.

sharkey

Regular Member
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Aug 8, 2010
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Arizona
Here's a great analogy in the article comments;

"And if my filing cabinet is full of documents written in code? Do I have to translate it? Is that part of the warrant?

I think that's more relevant to this case, so I'd like to know. "

I'm curious, is there case law for that?
 

KBCraig

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Granite State of Mind
This is as much a 4A case as 5A, and I think 4A precedent is sufficient.

Saying that you must provide your password is no different than saying you must provide the keys to your safe just because the police have a search warrant for your house. They can seize it if they have a warrant for it, but it's up to them to open it.
 

Jack House

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I80, USA
I'm not sure what the point is in bringing up the difficult of cracking the encryption. It shouldn't matter how hard it is to crack.
 

slapmonkay

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May 6, 2011
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Montana
Saying that you must provide your password is no different than saying you must provide the keys to your safe just because the police have a search warrant for your house. They can seize it if they have a warrant for it, but it's up to them to open it.

To get around the 5th ammendment they are trying to go the following route instead:
-They are NOT requesting passwords (as this is clearly protected)
-They ARE requesting an unencrypted version of the disk be provided

They seem to think that if they know files exist on the disk, then they have the legal right to request a copy of the files under a warrant. However, to relate this back to a bunch of letters written in code in a filing cabinet, this would still be related to to that. Its like not asking for the encryption key but rather for the person to provide an unecrypted version of every document in the cabinet.

I still think its covered under the 5th and would not provided requested information.
 

p.publius

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Dec 5, 2010
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Northern Virginia
Not I

I am not required to provide the rope to hang myself. :eek: If this was me I would refuse and make them pay for my room and board while my lawyer move this through the courts. :monkey Do they have RAS that files relating to the alleged bank fraud exist on the lap top? If so, engage the supercomputer just like SWAT breaking down the door. :eek:
 

since9

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Jan 14, 2010
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Colorado Springs, Colorado, USA
Before I would venture an opinion, I'd want to know what the courts have decided...

U.S. Courts are notorious for making bad decisions that are later overturned on appeal.

My opinion is that she should stand on the Fifth Amendment. When it's eventually overturned, she'll have the ruling on which she can sue the lower levels for her time and suffering. Should be more than enough for her to retire.

...in matters involving locked automobiles, locked houses and businesses, locked boxes and locked safes. I don't see a material difference between something being encrypted (software locked) file and something being physically secured (hardware locked).

I don't see a material difference there, either. It's akin to merely keeping it locked away in one's brain. If that's where the password is, the judge can order her to reveal it all day long, but if the lady believes doing so will incriminate her, she has the right to plead the 5th: "No person ... shall be compelled in any criminal case to be a witness against himself..."

It does not matter whether it's one's spoken word or if that spoken word which leads to the revelation of written ones. No one can be compelled (ordered by a judge) to say anything (including a password) that serves as evidence against one's self.

I'm sorry, but Judge Blackburn's order is in error. Apparently, he is either unaware of the nature of computers or the nature of the Fifth Amendment.
 

Fallschirjmäger

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Cumming, Georgia, USA
Mu understanding is that under the Federal Rules of Evidence, in a criminal case the prosecution cannot compel the defendant's spouse to testify against him. This privilege only applies if the defendant and the spouse witness are currently married at the time of the prosecution. Additionally, this privilege may be waived by the witness spouse if he or she would like to testify. I believe there is an exception for polygamous marriages as well.

I come up with Rule 505, although that section is not mentioned in the link above. Each state may have their own version of that, of course.
 
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Beretta92FSLady

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Dec 14, 2009
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In My Coffee
If access to the encrypted hard drive is all the prosecutors have to get their case through, well, they shouldn't have charged the woman in the first place. Personally, if I was committing a crime, and stored the information on my laptop, I would not give it up either. I would rather spend six months in jail for contempt than spend six years in jail for fraud.

I predict that the judges ruling will be struck down by a higher court. The woman went out of her way to assure that the content was only accessible to herself, and since she is required to give up a password to access the information, she can't be compelled to do it--or so it seems.
 

sawah

Regular Member
Joined
Jan 22, 2011
Messages
436
Location
Virginia
Just run a batchfile that decrypts and does a format/u on the drive (overwrites with zeros) recursively.
 
H

Herr Heckler Koch

Guest
Right? What are they going to do, outlaw forgetting things? lol
Janet Incompetano's DHS Blue Shirts are developing a kit of tools, legal and physical, to help our recall - pliers, splinters, drugs.

When your IT geeks offer iris and fingerprint scanners, what are you going to say? Hell no!
 

protias

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Dec 18, 2008
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SE, WI
Even Kevin Mitnick couldn't be forced to give up his encryption password to decrypt his drives.
 

OC for ME

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Jan 6, 2010
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White Oak Plantation
Man....this topic is starting to read like a bunch of not so random letters (upper/lower case), characters, and numbers in a 1024 bit format.
 

Fallschirjmäger

Active member
Joined
Aug 4, 2007
Messages
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Location
Cumming, Georgia, USA
Man....this topic is starting to read like a bunch of not so random letters (upper/lower case), characters, and numbers in a 1024 bit format.

password_strength.png
 
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