Slightly older news: Judge trying to force woman to decrypt her hard drive

[Gooberlx2]

umm no thats what the 5th is all about. you can not punish somebody for invoking their rights.

Indeed, but the judge disagrees that she has the right to invoke here; so.....contempt.

 

[Gooberlx2]

Based on this ruling, you can be compelled to tell them how to get to the car since they have a warrant to search it.

Explain how you're making that connection here. The cops know exactly where the car (HDD) is in this case.

The issue is, as the article I linked mentioned, that analogies just ultimately don't work here because the situation and combination of characteristics (physical evidence, metaphysical key/password) is unique. It's one reason why the judge's opinion makes no attempt to draw any analogies.

 

[Juddog]

If you follow this ruling to it's logical conclusion, then the 5th means nothing anymore.

For example, you killed someone, put the body in a car and made the car vanish. The cops know you put the body in the car, they have a warrant to search the car, but can't find the car. Based on this ruling, you can be compelled to tell them how to get to the car since they have a warrant to search it.

To me that's just flawed logic. If they need you do provide any information that's in your head to convict you of something, then forcing you to provide that information goes directly against the 5th.

That's a bad analogy and you know it.

 

[OutHouse]

Indeed, but the judge disagrees that she has the right to invoke here; so.....contempt.

i think the judge is about to get bitch slapped. if this was the case the 5th should be erased.

 

[waggy]

Indeed, but the judge disagrees that she has the right to invoke here; so.....contempt.

and i suspect the judge is going to get smacked down (well hope he would). this seems to me a clear cut 5th amendment situation

 

[runzwithsizorz]

umm no thats what the 5th is all about. you can not punish somebody for invoking their rights.

Susan McDougal served 18 months in prison for contempt of court for refusing to answer any questions relating to Whitewater, and was later granted a pardon by President Clinton just before leaving office.

 

[Fern]

Now, OTOH, if they found love letters in there to someone she was having an affair with that she said, in testimony, that she wasn't... well, then that is entrapment. So long as that person had nothing to do with the original charges or with any other criminal act, lying about (him) to save face should not be brought up as a crime (ala Clinton/Lewinski).

That's not "entrapment". That's not what entrapment means, not close.

She is obstructing justice.

That in and of itself is a charge unrelated to the main charge. She has the means to access the information requested by the prosecution, she should supply it.

Not doing so is the same as hiding records, claiming that you forgot where they were, or that you don't have them/can't get them.

The inability to produce them is not a proof of guilt, but it is an obstruction of justice. She cannot be seen as more guilty because she is unwilling to provide materials, but she can't just do what she wants in a case like this w/o paying the legal price.

This is not 4th or 5th amendment in any other but an obtuse application that does not fit into the context of the situation.

A person charged with a crime has no responsibility to cooperate or assist with their own prosecution. The 5th amendment affirms that. Therefore she is not "obstructing justice".

Fern

 

[Fern]

Another article.

Link to the judge's opinion. It's actually an interesting read.

Some points:
* She's been granted immunity from having any evidence on the laptop being used against her.
-snip-

I get a different understanding from reading the decision. It seems to me that the prosecution won't use her act of un-encrypting as evidence against. I see nothing to suggest that the contents won't be used as evidence against her.

Fern

 

[Fern]

Susan McDougal served 18 months in prison for contempt of court for refusing to answer any questions relating to Whitewater, and was later granted a pardon by President Clinton just before leaving office.

She wasn't charged with any crime at the time. She wasn't being asked to testify against herself. She was being compelled to testify against Bill Clinton. I don't see any legitimate 5th amendment issue in her case, neither did the judge apparently.

Fern

 

[the DRIZZLE]

If you follow this ruling to it's logical conclusion, then the 5th means nothing anymore.

For example, you killed someone, put the body in a car and made the car vanish. The cops know you put the body in the car, they have a warrant to search the car, but can't find the car. Based on this ruling, you can be compelled to tell them how to get to the car since they have a warrant to search it.

To me that's just flawed logic. If they need you do provide any information that's in your head to convict you of something, then forcing you to provide that information goes directly against the 5th.

IANAL but I think if you owned the car they absolutely could get a warrant and force you to tell them where it was. You could say it was stolen or something which brings us back the "I forgot the password" issue.

 

[Fern]

IANAL but I think if you owned the car they absolutely could get a warrant and force you to tell them where it was. You could say it was stolen or something which brings us back the "I forgot the password" issue.

Really don't think so.

How many cases have you seen where a defended in a murder case was compelled to tell them where the body (or murder weapon etc.) was? I'm thinking the correct answer is "never".

Fern

 

[Juddog]

Really don't think so.

How many cases have you seen where a defended in a murder case was compelled to tell them where the body (or murder weapon etc.) was? I'm thinking the correct answer is "never".

Fern

The Fifth Amendment provides protection from being compelled to produce incriminating testimony, it does NOT protect you from being compelled to produce evidence unless the act of producing it is incriminating.

If they know what's on the hard drive that they know belongs to her, the 5th amendment doesn't apply because she's just hiding evidence, which is illegal.

 

[the DRIZZLE]

Really don't think so.

How many cases have you seen where a defended in a murder case was compelled to tell them where the body (or murder weapon etc.) was? I'm thinking the correct answer is "never".

Fern

I think you're right. I think they can get a warrant to search your property for a specific item but I don't think you have to tell them where it is of you don't have it.

 

[Juddog]

I think you're right. I think they can get a warrant to search your property for a specific item but I don't think you have to tell them where it is of you don't have it.

That's not the case here though - they already have the property, and they already have her on tape saying that the evidence is on the property. At this point it's a given that the property in question has the information that the court needs, so the lady is obstructing justice.

 

[Juddog]

Also in terms of legal precedent, there is this majority opinion from John DOE, Petitioner v. UNITED STATES.

http://www.law.cornell.edu/supremecourt/text/487/201

We do not disagree with the dissent that "[t]he expression of the contents of an individual's mind" is testimonial communication for purposes of the Fifth Amendment. We simply disagree with the dissent's conclusion that the execution of the consent directive at issue here forced petitioner to express the contents of his mind. In our view, such compulsion is more like "be[ing] forced to surrender a key to a strongbox containing incriminating documents" than it is like "be[ing] compelled to reveal the combination to [petitioner's] wall safe."

 

[the DRIZZLE]

That's not the case here though - they already have the property, and they already have her on tape saying that the evidence is on the property. At this point it's a given that the property in question has the information that the court needs, so the lady is obstructing justice.

You can't be charged with obstructing justice in a case against yourself. Honestly, the more I think about this one the more confused I get. I think the poster who used the letters written in code analogy had an excellent point. But as you said and the case law backs up they can force you surrender papers that have incriminating information on them. As goober said none of the existing case law provides a perfect analogy here.

 

[Juddog]

You can't be charged with obstructing justice in a case against yourself. Honestly, the more I think about this one the more confused I get. I think the poster who used the letters written in code analogy had an excellent point. But as you said and the case law backs up they can force you surrender papers that have incriminating information on them. As goober said none of the existing case law provides a perfect analogy here.

It's also a matter of precedent.

There are other cases that back it up as well; for example:

Hiibel vs. Sixth Judicial District Court of Nevada

In 2004, the Supreme Court ruled in Hiibel vs. Sixth Judicial District Court of Nevada, that laws that require a person to disclose his identity to a police officer do not violate the Fifth Amendment's Self-Incrimination Clause. If an officer has a reasonable suspicion that there is a crime in the making or has already been committed by this person, he can legally ask the person to identify himself and the person must comply or be charged with obstructing an officer in discharging his duty. The person does not, however, have to answer further questions.

 

[Jhhnn]

You have the right to remain silent. Anything you say or do can and will be held against you in a court of law. You have the right to speak to an attorney. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights as they have been read to you?

That's the standard Miranda warning. The notion that forcing the defendant to offer up the encryption key complies with that is absurd unless immunity is provided, and that's not just for giving the key, but also for the contents of the drive. The rest is just lawyers attempting a rhetorical pirouette on the head of a pin.

The Constitution protects the rights of everybody, particularly those accused in a court of law.

 

[NetGuySC]

It's also a matter of precedent.

There are other cases that back it up as well; for example:

Hiibel vs. Sixth Judicial District Court of Nevada

Being forced to identify yourself isn't a completely relevant precedent either.

I hope this case does not go to the supreme court for it is not a pure 5th amendment issue.

In a more perfect scenario for the supreme court, if law enforcement suspected a person of financial fraud and after obtaining a search warrant for his computer contents they find an encrypted container or encrypted file on his hard drive. If he does not admit knowledge of that encrypted container then requiring him to provide a password would be more of a pure 5th ammendment issue for the courts, also just the mere fact of providing the password for the container (even if done in private to protect himself him from revealing the contents of his mind) would infer his ownership and his knowledge of the encrypted container and its contents, thus implicating himself.
In this case just providing the password itself is implicating..

In the case discussed in this thread, the lady has admitted her ownership and existance of encrypted evidence (so her knowledge of the password isn't impllicating; she can decrypt the hard drive in private and keep the contents of her mind intact). So in this case, I believe the judge is correct.
Bottom line, she is an idiot for admitting that she know anything about the laptop. She should have just lied and said that she has never been able to get that laptop to work whatever. This is the reason you never answer questions to law enforcement.... everything you saw will be used aginst you.
In this case having knowledge of the password is not implicating, she has already admitted knowledge of the encrypted laptop.

 

[Jhhnn]

Also in terms of legal precedent, there is this majority opinion from John DOE, Petitioner v. UNITED STATES.

http://www.law.cornell.edu/supremecourt/text/487/201

That doesn't really apply, because the defendant would have to release factual information, ie, the true encryption key for the drive.

 

[shabby]

http://www.wired.com/threatlevel/2012/02/forgotten-password/

A Colorado woman ordered to decrypt her laptop so prosecutors may use the files against her in a criminal case might have forgotten the password, the defendant’s attorney said Monday.

Seeing that her laptop was seized in 2010 its definitely plausible to forget the password after 2 years.