Posted on 01/24/2012 12:06:01 AM PST by LibWhacker
The actual relevent wording of the Fifth Amendmant "nor shall be compelled in any criminal case to be a witness against himself"
That seems pretty clear to me.
In this changing, computer age, the government is quite keen to reinterprit the constitution in ways that benefit the government. I however, would choose to claim my understanding of the fifth amendment... over a judge's interpritation... PERIOD. I would rather accept the jail time for contempt of court. Particularly in the case of a potential felony conviction. The most time a Federal judge can keep you in jail for contempt of court is less than five years.
Me too. Vmware :-).
I only have 1/3rd of the password. Anyone puts in only 1/3rd or 2/3rds of the password and hits enter and the hard drive is wiped.
I tend to support the right of government to force people to decrypt at border crossings (no different than being searched by customs). But once in the US, forget it - and how does one PROVE that, in either case, that the ‘owner’ of the computer even knows the password.
What if he ‘forgot’ it?
Sounds to me, from the limited info, that it is just more evidence they seek from her computer. It is one thing to show a jury that that she signed for or signed on the document, but a lot more damning to show that she forged it on her laptop. That is why this is a 5th Amendment issue case - they want her to incriminate herself in this way by showing them that she has the forged documents.
If a person was/is under investigation of a crime, a judge could/can issue a search warrant. If the indicted person had say, a safe deposit box or a locker in a bus station, a judge could issue a search warrant that allowed the bank to open the safe deposit box or the police to cut off the lock on the locker or seize the key under a search warrant. On the other hand, the judge as I understand the Constitution couldnt/cant compel the accused to open the safe deposit box herself or order her to open it herself for the police.
Unless Im missing something, wouldnt forcing her to decrypt her computer or surrender the password be analogous to forcing her to go the bank and open the safe deposit box or the bus station and open the locker?
Much of the discussion has been about what analogy comes closest. Prosecutors tend to view PGP passphrases as akin to someone possessing a key to a safe filled with incriminating documents. That person can, in general, be legally compelled to hand over the key. Other examples include the U.S. Supreme Court saying that defendants can be forced to provide fingerprints, blood samples, or voice recordings.
On the other hand are civil libertarians citing other Supreme Court cases that conclude Americans can't be forced to give "compelled testimonial communications" and extending the legal shield of the Fifth Amendment to encryption passphrases. Courts already have ruled that that such protection extends to the contents of a defendant's minds, the argument goes, so why shouldn't a passphrase be shielded as well?
Im with the civil libertarians on this one.
“the password to the drive, either orally or in written form.”
Like forcing her to type it into the computer is somehow different.
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My tagline says it all. Been saying it for past 5 years.
SFL
The very first thing the feds always do is make a bit-level copy of the hard drive (by taking the drive out of the machine and putting it on their own equipment). If you then enter an "erase all" pass-phrase which results in changes to the drive, they immediately charge you with obstruction of justice, restore the drive from the backup, and tell you to try again.
Better variation which would be more likely to pass legal tests: have your data on foreign server, and if you do not access the data for N days, it gets wiped. Then all you would have to do is stall for N days, and nobody but you knows what N is. Variation: have two pass phrases, where one shows your true data, and another shows innocuous data, and locks out or erases your true data.
In these days of multi-gig flash chips, you could also keep an encrypted copy of your data in a chip buried in the woods somewhere.
Or something in a similar vein -- have an obviously encrypted portion of the disk, but hide the actual sensitive data via steganography.
In the encrypted volume, put sensitive but non-incriminating data (such as tax returns, bank info, commonly used [but outdated] list of passwords, etc.) to justify its need to have been encrypted.
More along the idea you mentioned, I've seen programs for iOS devices (and I'm sure they exist elsewhere) where it uses a pair of passwords: a "dummy" password that unlocks a "safe" set of files and a "real" password that unlocks the real hidden content.
“Im a law-abiding guy and have nothing to hide.”
Are you sure? Most of us break laws every day. Just the fact you post on FR makes you a criminal in some peoples minds. People who currently hold positions of power in the US govt.
Sophos has a free encryption tool which can be used for folders. I’ve found it a little easier to use than Truecrypt.
Didn't have to. The original was released under the GPL, and once it's out there with a GPL license, that can't be taken away -- the last GPL'd version is always free to use, modify, and distribute, though it will pretty much fork from a commercial version.
Note that the author(s) can provide the same source to a commercial vendor under a different license, and further development can continue on that source without those changes being subject to GPL provisions. The trick is that all authors have to sign off on that -- an open source project with a large number of contributors may find it impossible to get all contributing authors to agree to the separate license. Depending on the level of their contribution, of course, those parts may simply be excluded from the rest.
If it’s national security they can always call on NSA. To me it is clearly a fifth amendment issue.
Fed: "That's not believable, and I bet I could get a judge to hit you with a perjury charge. You were carrying the laptop in the airport, and security footage shows you using it!!!"
You: "See, that's the interesting part. I was trying various passphrases I used to use! I brought the laptop with me to try to figure it out in my spare time."
If it’s national security they can always call on NSA. To me it is clearly a fifth amendment issue.
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