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December 15, 2007

Giving up password may constitute self-incrimination

An interesting legal for our times, via Bellman at Metafilter...

A Magistrate Judge in the U.S. District Court in Vermont has ruled that a man allegedly caught with child pornography on his laptop need not reveal his PGP password (yes, authorities shut down the laptop and now can't get at the alleged porn) pursuant to the Fifth Amendment's protections against self incrimination. The decision is here [PDF]. A decent write-up (from CNET of all places) is here.

Bellman notes that submitting to blood test is not considered self-incriminating, nor is handing over the physical key to a safe. Is there a difference, he wonders, between demanding the key and demanding the combination to the lock?

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Comments

I am not sure that Bellman's statement about physical safe keys holds as a general rule. The case he cited was not a "safe key" case and only one reference in dicta appears in the dissent, which reference the majority opinion also cited.

I suspect, but cannot confirm, that the safe key case involves a situation where the government only needs the key surrendered, not found. I don't think that a suspect is required either to admit ownership or possession of a key nor to assist in its location. But I might be wrong.

I am not sure that Bellman's statement about physical safe keys holds as a general rule. The case he cited was not a "safe key" case and only one reference in dicta appears in the dissent, which reference the majority opinion also cited.

I suspect, but cannot confirm, that the safe key case involves a situation where the government only needs the key surrendered, not found. I don't think that a suspect is required either to admit ownership or possession of a key nor to assist in its location. But I might be wrong.

Check the comments at Volokh, where Orin Kerr wrote about this. A hotly disputed topic, to be sure.

Legally, this is really muddy, and I'm not sure I buy Kerr's argument. Fact is, law is not well equipped to deal with thing like computers, and all the fine points they create - things like encryption, which used to be mostly reserved for nation states, are now commodities. Attempting to side step the 5th, as Kerr does, by claiming, essentially, that disclosure is unneeded, "merely" compliance, looks to me as serious overreach.

Morally, it is still muddy, but I bend in favor of a person not being forced to disclose. Heading down that road is walking into a thicket of suck. I'm not normally one for slippery slope arguments, but... What is the 5th to mean if this sort of disclosure is legally mandated? I don't see a clear difference between the password to my account and the location of hypothetical crime evidence, say. They're both external to me, and presumably of interest to those who would prosecute. This path seems to head to a situation where the 5th only protects disclosures that don't interact with objects in the real world. That's sadly in line with what has been done to the 4th, but I'm not voting for consistency here.

Thought experiment: give it 15 more years, and there's a very good chance that machines will be hardwired to people, at least for various disabilities (vision, for one, is close to happening). Unless the design is very carefully tailored to exclude the possibility of legal discovery, these devices will contain data "of interest" to law enforcement and prosecutors. Will the 5th cover them?

Or perhaps there is no difference, but also no *moral* reason the law or State has a right to compel blood takings either.

Mario - I drew the distinction only because there is one. Like it or not, morals are not law, and law is not moral. Many people would be well served by noticing the difference, and wishing it were different is actually an invite to all sorts of nasty outcomes.

Is there a difference between giving up the contents of your hand and giving up the contents of your mind?

Depends on what you have on hand and what you had in mind.

Sadly, the fifth amaendment is going the way of the fourth. All of the interpretations listed here are attempts at weakening the protection given by the fifth. The rationale was that forcibly stealing bits of you body doesn't amount to testimony since you don't have to say anything. Now the prosecution wants to go further, and say that it shouldn't apply even when it DOES require testimony. The prosecution is attempting to do exactly what the fifth amendment protects us from-forced testimony and confessions. The judge is absolutely right in his assessmnent, and I am for once pleasantly surprised.

I wouldn't be surprised if prosecutors or political rivals of the judge tried to use this case for publicity purposes. It involves the unspeakable crime of child porn, which will surely prevent any levelheaded consideration from mainstream liberals or conservatives.

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