Should prosecutors be able to compel you to reveal an encryption password?

[WickedLou9]

lets say a congressmen was implicated in a bribery scandal. I know it's hard to believe, but just for a moment lets pretend that's possible.
So this congressmen knows that they have been e-mailing back and forth with someone providing bribes and the information on the PC would incriminate them. Well the prosectors office comes knocking and tells them that they are being investigated for fraud.
The congressmen then goes and encrypts all of the information on the hard drive with the strongest encryption he can find. He then goes out back with his file cabinet and sets all of the related documents on fire.

When officials come knocking with search warrants for his office and all of his computers, the office is essentially empty, the computers are useless and the files have all been set on fire.

I would contend that the act of setting the documents on fire is no different than the encryption of the computer data. In either case the information has been destroyed. Thats obstruction and you go to jail.

[7960]

Originally Posted by WickedLou9

If you tell them where the body is that implies that you have material information about someones death. The simple act of telling them where the body is incriminates you.

false.

With the password you are simply granting access to some container. Giving someone a password does not, in itself, incriminate you. Even if they found illegal files on your PC, that doesn't incriminate you immediately. IT's just evidance.

and knowing where a body is doesn't incriminate you. Even if the body was on your property that doesn't incriminate you immediately. It's just evidence.

We found X on john doe's computer. He says a hacker put it there.

Then the burden's on him to prove a hacker put it there.

Encrypting the drive is no different than destroying evidance if you refuse to hand over the password. Data that is sufficiently encrypted is effectively destroyed.

but it's not destroyed. if you burn a paper then that's destroyed. if you write it in code that nobody else can understand then it's not destroyed.

[WickedLou9]

Originally Posted by 7960

false.

and knowing where a body is doesn't incriminate you. Even if the body was on your property that doesn't incriminate you immediately. It's just evidence.

Then the burden's on him to prove a hacker put it there.

but it's not destroyed. if you burn a paper then that's destroyed. if you write it in code that nobody else can understand then it's not destroyed.

It's not false. If you have knowledge of the whereabouts of a dead body you are required by law to come to the authorities. If you failed to do that and you are then asked to testify under oath and they ask you where the body is, you can take the 5th because admitting on the stand that you knew where the body was DOES incriminate you.

Right, the burden would be on the prosecutor to prove that you put the illegal porn on the computer.

It is effectively destroyed, data that is sufficiently encrypted is unusable, just as the burned paper is unusable. The fact that you may be able to restore the paper at a later time if you so choose is irrelevant. You have made it unusable to those who require access.

[7960]

we're going to go around and around and not agree.

my opinion, telling them your password is the same as telling them where the body is, is the same as telling them where the gun is, is the same as telling them who your accomplice is,......the list goes on. you have a right to not in incriminate yourself. telling them the password is incriminating.

but here's (IMO) the thing that's making this an issue:

The difficulty in the court's reasoning, however, is that the government already knew that the files belonged to Boucher and it already was fully aware that he knew the relevant password, in part because he essentially admitted as much when they first talked with him at the Canadian border. Therefore, the incrimination that follows from Boucher's typing in of his password is simply the content of his newly-accessible computer files. In the words of another Supreme Court precedent, Boucher's knowledge of the password was a "foregone conclusion," thus meeting an exception to the Fifth Amendment's coverage of acts of production.

FindLaw's Writ - Colb: Does the Fifth Amendment Protect the Refusal to Reveal Computer Passwords? In a Dubious Ruling, A Vermont Magistrate Judge Says Yes

he's going to be compelled to give them the password because he already admitted the files are there. if they *suspected* he had files then he could refuse. but since he had already showed them, he's fucked.

[WickedLou9]

Originally Posted by 7960

we're going to go around and around and not agree.

my opinion, telling them your password is the same as telling them where the body is, is the same as telling them where the gun is, is the same as telling them who your accomplice is,......the list goes on. you have a right to not in incriminate yourself. telling them the password is incriminating.

but here's (IMO) the thing that's making this an issue:

The difficulty in the court's reasoning, however, is that the government already knew that the files belonged to Boucher and it already was fully aware that he knew the relevant password, in part because he essentially admitted as much when they first talked with him at the Canadian border. Therefore, the incrimination that follows from Boucher's typing in of his password is simply the content of his newly-accessible computer files. In the words of another Supreme Court precedent, Boucher's knowledge of the password was a "foregone conclusion," thus meeting an exception to the Fifth Amendment's coverage of acts of production.

FindLaw's Writ - Colb: Does the Fifth Amendment Protect the Refusal to Reveal Computer Passwords? In a Dubious Ruling, A Vermont Magistrate Judge Says Yes

he's going to be compelled to give them the password because he already admitted the files are there. if they *suspected* he had files then he could refuse. but since he had already showed them, he's fucked.

What if they suspected he had the files, went to a judge and presented thier case, got a search warrant, and then presented him with the search warrant? Would he then be compelled to allow them access to the computer?

[motivez]

Originally Posted by WickedLou9

What if they suspected he had the files, went to a judge and presented thier case, got a search warrant, and then presented him with the search warrant? Would he then be compelled to allow them access to the computer?

Access to the physical object? Sure.. Access to the contents of his mind? No.

Again, you can't get a warrant that forces someone to reveal the contents of their mind.

If you know that you have illegal material on your computer, giving up the password is the same as being forced to incriminate yourself.

[7960]

Originally Posted by WickedLou9

What if they suspected he had the files, went to a judge and presented thier case, got a search warrant, and then presented him with the search warrant? Would he then be compelled to allow them access to the computer?

according to that findlaw, no. according to that this guy's biggest problem is that border agents saw the files so them being there is not in doubt so he's not really giving testimony that provides evidence...the evidence is there.

if he had *said* "I could have pr0n on my PC" then they wouldn't be able to compel him to type the password because they wouldn't know, they'd be fishing.


either way, IMO he should not be required to open the pc. and if they tell him he needs to he should refuse and go to jail for contempt. contempt is much less harsh than being convicted of child pr0n.

[WickedLou9]

Originally Posted by motivez

Access to the physical object? Sure.. Access to the contents of his mind? No.

Again, you can't get a warrant that forces someone to reveal the contents of their mind.

If you know that you have illegal material on your computer, giving up the password is the same as being forced to incriminate yourself.

People with information pertinant to a case are compelled to testify all the time. They are legally required to divulge the contents of thier minds. Now that is assuming that the information that they divulge won't incriminate them. Giving someone your password does not incriminate you. It's a key. It's like telling them your address. It's like the police getting a warrant to search your home but you refusing to tell them your address.
your address, in and of itself does not incriminate you. The stuff in your house might, but that's the way it works. The 5th ammendment is meant to protect that man from doing what he already did. Saying, Yes I have child porn on my PC. That is what the 5th prevents you from having to do. The police already had the right to search that PC. The password is simply a key, no different than a combination or finger print. You can be compelled to give finger prints, DNA, blood samples, etc.
The intent of the 5th ammendment is not so that a person does not have to cooperate with law enforcement in any way... It's to prevent that person from being called to the stand to give testimony against himself. Giving a password is not testimony. It's simply providing law enforcement with the key that they need to search something which they already have legal rights to search.

[7960]

Originally Posted by WickedLou9

People with information pertinant to a case are compelled to testify all the time. They are legally required to divulge the contents of thier minds.

not if they're the target of the case.

Now that is assuming that the information that they divulge won't incriminate them.

see?

Giving someone your password does not incriminate you.

it's a piece of the chain...it leads to the evidence they're going to use against you

You can be compelled to give finger prints, DNA, blood samples, etc.

None of those are testimony.

"Self-incriminating" refers to the potential of a response to a question to provide a link in the chain of a criminal prosecution against the responder. If police ask a question that does not call for self-incriminating information, then a person who is not in custody or on trial for a crime may be compelled (though by legal process, not by force) to answer the question.

"Testimony" refers to communicative behavior that reveals the contents of a person's mind. Because giving fingerprints, opening one's door, and stopping when police order a stop do not require a person to convey, through communication, the contents of her mind, none of them trigger the Fifth Amendment right against compelled self-incrimination. Though there is compulsion and self-incrimination, there is no testimony.

same findlaw as above

[WickedLou9]

I don't see a password the same way you do. To me it's a key. It's no different than the key that I have to start my car. It is a bit of information that is necesary to gain access to something. A key is information. It tells you what position the pins in your lock must be placed in so that it will open. Using the same reasoning as was used here, you should not have to give law enforcement access to anything that might incriminate you. If I know I have marijuana in my house, I don't have to give them access to it. Lets just say that I lived in an old missle silo and I could actually prevent them from getting in if I wanted to. How is that different?

Originally Posted by 7960

not if they're the target of the case.

see?

it's a piece of the chain...it leads to the evidence they're going to use against you

None of those are testimony.

"Self-incriminating" refers to the potential of a response to a question to provide a link in the chain of a criminal prosecution against the responder. If police ask a question that does not call for self-incriminating information, then a person who is not in custody or on trial for a crime may be compelled (though by legal process, not by force) to answer the question.

"Testimony" refers to communicative behavior that reveals the contents of a person's mind. Because giving fingerprints, opening one's door, and stopping when police order a stop do not require a person to convey, through communication, the contents of her mind, none of them trigger the Fifth Amendment right against compelled self-incrimination. Though there is compulsion and self-incrimination, there is no testimony.

same findlaw as above

[7960]

Originally Posted by WickedLou9

If I know I have marijuana in my house, I don't have to give them access to it.

and this is where we disagree.

so when they come in with the warrant are you saying you must walk them to the false wall in the basement that's concealing a door to a hidden room? <I don't think so>


ok, so you have to give them access to the house just like I'll give them access to the laptop. if they can't find what they're looking for it's not my responsibility to hand it to them.

[thewise1]

Originally Posted by 7960

contempt, jailed until you do?

"I forget the password. Sorry, my bad"

[WickedLou9]

Originally Posted by 7960

and this is where we disagree.

so when they come in with the warrant are you saying you must walk them to the false wall in the basement that's concealing a door to a hidden room? <I don't think so>


ok, so you have to give them access to the house just like I'll give them access to the laptop. if they can't find what they're looking for it's not my responsibility to hand it to them.

That's not really the same. In that analogy the PC is the house and the actual location where the files are is that wall in the basement. It would be the equivalent of hiding the files in a zip within a zip buried in some system folder.
It's definately a gray area because all of this techology doesn't really have any precedant in our legal system.

Does the severity of the charge matter? What if he had a kidnapped person locked somewhere and the location was saved on his computer, or perhaps what if it's just illegal MP3's.

What if it wasn't a password, but a thumb drive with a secure key on it. With Windows Vista you can encrypt the entire drive and use the key to access the computer. Could you be compelled to hand over that sort of "password"?

This is one of those cases where the law can't keep up with technology.

[WickedLou9]

Originally Posted by thewise1

"I forget the password. Sorry, my bad"

The Alberto Gonzales defense!

[7960]

Originally Posted by thewise1

"I forget the password. Sorry, my bad"

just "I do not recall" over and over.

[7960]

Originally Posted by WickedLou9

It's definately a gray area because all of this techology doesn't really have any precedant in our legal system.

exactly, and that's why I said

1. personally i think you shouldn't be forced to give a password.
2. and personally I think the courts are going to uphold that.
3. and personally I believe it's going to lead to laws creating mandatory back-doors in encryption software.

Does the severity of the charge matter? What if he had a kidnapped person locked somewhere and the location was saved on his computer, or perhaps what if it's just illegal MP3's.

it shouldn't matter, no.

if they really need to get in a pc in order to save a person there's no reason they can't give the guy immunity in exchange for his password

What if it wasn't a password, but a thumb drive with a secure key on it. With Windows Vista you can encrypt the entire drive and use the key to access the computer. Could you be compelled to hand over that sort of "password"?

IMO that's the exact same as the original issue.

and no,

[motivez]

Originally Posted by 7960

exactly, and that's why I said

1. personally i think you shouldn't be forced to give a password.
2. and personally I think the courts are going to uphold that.
3. and personally I believe it's going to lead to laws creating mandatory back-doors in encryption software.


it shouldn't matter, no.

if they really need to get in a pc in order to save a person there's no reason they can't give the guy immunity in exchange for his password

IMO that's the exact same as the original issue.

and no,

I don't think they'll be able to legislate backdoors into encryption software, honestly. It's not realistic. For starters, if people know there is a backdoor, it renders the software useless.. meaning those businesses would be legislated out of business.

Secondly, there will always be access to software like TrueCrypt, the version that's out right now is archived everywhere.. that people will be able to use to encrypt their files.

The limitation to the software will only come as computing technology advances, and calculation speeds get faster and faster. Right now, no one is going to dedicate 17+ years of processing time on a super computer to tackling one encrypted drive.. it wouldn't be worth it, and likely the statue of limitations would run out on most crimes before they'd be able to get something decrypted