Fifth Amendment protection

[ahurtt]

Originally posted by: brxndxn
I really hope he wins.. As much as I hate child pornography, I don't believe we should twist the 5th Amendment around to make exceptions to it just because some particular crime is horrible. If I'm guilty, you prove it; I'm not helping. That's how it works.. and that's how it needs to work.

Well, I believe the main issue of contention here is exactly which side is doing the twisting. . .who's interpretation of the 5th amendment is the right one?

 

[Fern]

Originally posted by: ahurtt
I the cops want to search your house they get a warrant. They can search your car or your person if they have probable cause. If they have probable cause to believe they will find incriminating evidence on this mans computer, why is it any different from those scenarios?

By this guys argument, if a cop had probable cause to search your car but it was locked, you could simply refuse to unlock the car to permit the search claiming that unlocking your car would be self-incriminating. If they can produce a warrant or demonstrate probable cause, I think this guy should be made to grant them access to the computer. He doesn't have to tell them the password, but he does have to reveal the content it protects.

No, your analogy is addressed above (quoted below). Apparently the courts have already ruled that you can be forced to turn over a (physical object like a) key.

This debate has been one of analogy and metaphor. 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.

But the judge in his ruling also said:

"Compelling Boucher to enter the password forces him to produce evidence that could be used to incriminate him,"

No that sounds stupid. Of course people can be compelled to produce evidence that could be used to convict them. That's what a subpeona is used for.

I haven't done any reserch on the 5th Amendment, but the article above qoutes the SCOTUS as saying:

Supreme Court cases saying Americans can't be forced to give "compelled testimonial communications"

I tend to think (my guess) that it may come down to the question of whether providing the password meets the definition of "testimony". I tend to believe that it does not.

Fern

 

[blackangst1]

Im not sure the SCOTUS will rule in favor of the prosecutor. Its one thing to compel testimony or physical evidence. It's quite another to compel a thought. Afterall, thats all a password-is a thought. Our court system and prison system cannot handle convictions of thoughts in this country. We would all be criminals almost without exception.

 

[Fern]

Originally posted by: blackangst1
Im not sure the SCOTUS will rule in favor of the prosecutor. Its one thing to compel testimony or physical evidence. It's quite another to compel a thought. Afterall, thats all a password-is a thought. Our court system and prison system cannot handle convictions of thoughts in this country. We would all be criminals almost without exception.

A password is a "thought"? It might be just a jumble of random characters, not even a real "word".

I don't think so - it's not a thought IMO.

It's just that it is not written down - it lacks any aspect of being "tangible".

If it were written down, could the courts compel you to hand over the paper?

If you were a "fraudster" and just memorized all your financial info, could you be compelled to hand it over (tell them the info) even though it wasn't in written form? I bet that teh court could compel you to write it down and provide it. IMO, the memorized vs. written down, or the tangible (safe deposit box) key vs. password thingys are of no real distinction.

I see the password as being similar to a key to safe deposit box. It's just that it's an intangible "key".

Fern

 

[blackangst1]

Originally posted by: Fern

Originally posted by: blackangst1
Im not sure the SCOTUS will rule in favor of the prosecutor. Its one thing to compel testimony or physical evidence. It's quite another to compel a thought. Afterall, thats all a password-is a thought. Our court system and prison system cannot handle convictions of thoughts in this country. We would all be criminals almost without exception.

A password is a "thought"? It might be just a jumble of random characters, not even a real "word".

I don't think so - it's not a thought IMO.

It's just that it is not written down - it lacks any aspect of being "tangible".

If it were written down, could the courts compel you to hand over the paper?

If you were a "fraudster" and just memorized all your financial info, could you be compelled to hand it over (tell them the info) even though it wasn't in written form? I bet that teh court could compel you to write it down and provide it. IMO, the memorized vs. written down, or the tangible (safe deposit box) key vs. password thingys are of no real distinction.

I see the password as being similar to a key to safe deposit box. It's just that it's an intangible "key".

Fern

We can agree to disagree.

The long and short of it, however, is that if he doesnt give the passcode, they have zero evidence to hold him. As a previous poster stated, the best they can do is contempt. And they cant hold him long on that.

 

[1EZduzit]

Originally posted by: Fern

Originally posted by: blackangst1
Im not sure the SCOTUS will rule in favor of the prosecutor. Its one thing to compel testimony or physical evidence. It's quite another to compel a thought. Afterall, thats all a password-is a thought. Our court system and prison system cannot handle convictions of thoughts in this country. We would all be criminals almost without exception.

A password is a "thought"? It might be just a jumble of random characters, not even a real "word".

I don't think so - it's not a thought IMO.

It's just that it is not written down - it lacks any aspect of being "tangible".

If it were written down, could the courts compel you to hand over the paper?

If you were a "fraudster" and just memorized all your financial info, could you be compelled to hand it over (tell them the info) even though it wasn't in written form? I bet that teh court could compel you to write it down and provide it. IMO, the memorized vs. written down, or the tangible (safe deposit box) key vs. password thingys are of no real distinction.

I see the password as being similar to a key to safe deposit box. It's just that it's an intangible "key".

Fern

This is a tough one, but I disagree. If these were documents that were siezed instead of a hard drive, but were written in a code could they force him to uncode them for him? Of course not, that would be self-incrimination.

Same thing here, they have the hard drive, if they can't read it that's their problem. The "suspect" is considered innocent until proven guilty and can't be forced to incriminate himself.

 

[Jaskalas]

Originally posted by: BoberFett
If the government is able to coerce a person to give up the information in the heads, in this case a password, what other avenues of abuse will be opened up?

The slippery slope is real. Just look at where we are today.

In this case I stand by the 5th amendment, and this man should be let go.

 

[BoberFett]

I'm going to change all of my passwords to "YesImGuilty", so everything after that will be inadmissible.

 

[BrunoPuntzJones]

Originally posted by: Fern

Originally posted by: blackangst1
Im not sure the SCOTUS will rule in favor of the prosecutor. Its one thing to compel testimony or physical evidence. It's quite another to compel a thought. Afterall, thats all a password-is a thought. Our court system and prison system cannot handle convictions of thoughts in this country. We would all be criminals almost without exception.

A password is a "thought"? It might be just a jumble of random characters, not even a real "word".

I don't think so - it's not a thought IMO.

It's just that it is not written down - it lacks any aspect of being "tangible".

If it were written down, could the courts compel you to hand over the paper?

If you were a "fraudster" and just memorized all your financial info, could you be compelled to hand it over (tell them the info) even though it wasn't in written form? I bet that teh court could compel you to write it down and provide it. IMO, the memorized vs. written down, or the tangible (safe deposit box) key vs. password thingys are of no real distinction.

I see the password as being similar to a key to safe deposit box. It's just that it's an intangible "key".

Fern

The duress of the arrest and trial has caused amnesia. I can't remember what the password is.

Now what?

You can get a locksmith or crowbar to get into something physical. How are you going to prove I actually remember and just aren't telling you?

 

[blackangst1]

Originally posted by: BrunoPuntzJones

Originally posted by: Fern

Originally posted by: blackangst1
Im not sure the SCOTUS will rule in favor of the prosecutor. Its one thing to compel testimony or physical evidence. It's quite another to compel a thought. Afterall, thats all a password-is a thought. Our court system and prison system cannot handle convictions of thoughts in this country. We would all be criminals almost without exception.

A password is a "thought"? It might be just a jumble of random characters, not even a real "word".

I don't think so - it's not a thought IMO.

It's just that it is not written down - it lacks any aspect of being "tangible".

If it were written down, could the courts compel you to hand over the paper?

If you were a "fraudster" and just memorized all your financial info, could you be compelled to hand it over (tell them the info) even though it wasn't in written form? I bet that teh court could compel you to write it down and provide it. IMO, the memorized vs. written down, or the tangible (safe deposit box) key vs. password thingys are of no real distinction.

I see the password as being similar to a key to safe deposit box. It's just that it's an intangible "key".

Fern

The duress of the arrest and trial has caused amnesia. I can't remember what the password is.

Now what?

You can get a locksmith or crowbar to get into something physical. How are you going to prove I actually remember and just aren't telling you?

Which brings us full circle. He'll walk. Prosecution has ZERO evidence, other than the "elleged" material. Worst case-contempt. Out in 48 hours no charges filed.

 

[Jhhnn]

You have the Right to remain silent...

Remember?

 

[Siddhartha]

The Bill of Rights is a two edged sword. On one hand, it is great to be able to own guns but there is a coorelation between guns and people getting shot.

Freedom of speech is great but a lot of people get upset when things are written that confilicts with their world view.

I support the US Constitution and the Bill of Rights.