Should the Fifth Amendment Protect Suspects from Coughing Up Laptop Encryption Keys?

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chriswm

Wow this is a good debate. They had enough evidence obtain a search warrant and they found a laptop that MAY have proof that she committed a crime. If she is so "innocent" why doesn't she give up the password. If she gives up the password it will prove her "innocence" right? (notice the smirk on my face). I am not and expert on the law but if the police have probable cause they can search you and your house, personal belongings, etc., what happened to honesty and integrity? I wonder how many people she scammed and if they will get justice? 

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Holly Golightly

I am with the police in this one. Although the police should have a hacking tool that can decrypt it no problem. Either that, or hold her in for tampering with evidence. Apparently she is hiding one of her schemes which would further prove her guilt. 

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bigsarge72

"nor shall be compelled in any criminal case to be a witness against himself,".

The Fifth amendment protects people from self-incrimination; it doesn't put limits on how you may incriminate yourself (i.e. verbally, electronically, etc).  If you did something wrong, you have evidence of it on your computer, and you are forced to give the police access to that information, it is the same thing as forcing a confession (illegal). 

Now, that doesn't mean the police can't request a search warrant and get someone to hack the laptop....

Just my opinion =)

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Jims45wow

Several great observations. Defense advice is clear, duh, wasspord??

This is NOT a national security issue, unless it implicates Frank-n-Dodd, Fanny/Freddy, ACORN, et al.

What I want to come out of this: Bad guys to get caught. Joe citizen to be secure in his person, belongings, data, and dignity.

Eoraptor, maybe unintentionally, points out that retalitory actions are common for bringing the least degree of interest to law enforcement practices. Smart thing, guilty or innocent, is to just say no "er, I forgot".

I sorta hate for this case to create a demand for state cypher hacks...
The suspect might also have a nasty disk-nuking virus installed. If that wiped the prosecution's equipment, would that be a crime? Or, woould it be their fault for not being careful enough? hmmmmf....

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thetechchild

Considering they (assumably) had enough evidence to obtain a warrant to raid her home, I'd say that they have justification to demand her laptop's password. If there wasn't enough evidence to justify it, then she shouldn't have to give up her password.

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war59312

Hey,

Yes you should and do have to give up your private key in most cases.

National Security And Public Safety Trumps Personal Privacy!!!

So no the 5th amendment does NOT and should not protect you in these cases.

As long as the case is NOT national security related AND does not endanger the public at large then yes the 5th amendment does and should apply.

That's my personal take on it. I'm no lawyer so take it with a grain of salt. ;)

Take Care,

Will

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Ghok

I think what this comes down to for me is I would not be happy with a situation where someone would be forced to give up a password based on the assumption by the authorities that the person had that information... when they have no way of proving so.

If I had a safe that the authorities wanted to look inside, but I didn't have the key, it's not like they could force me to produce that key. They could take the safe and crack it, sure, but if I don't have the key, I don't have the key...

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Cyberdiver

What I not sure about is whether the issue is that they cannot access the laptop at all or is it that they cannot read the data files because they are encrypted?  If the issue is that the files being targeted are encrypted then I would have to side with the amendment.  If the issue is that they cannot access the laptop at all then I might side with the prosecutors and the whole key to the file cabinet idea.

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richeemxx

Some of the thinking here is a bit off. No you don't have to provide the state with evidence against you, but yes you do have to provide. within reason, access to certain things (blood, dna, finger prints ect).So the question for the court is does this fall into that category.

Here is a bit better analogy for you guys

 I rob a bank, they catch me with no cash. I have keys for a safe, a house and a car. I don't have to tell them where the money or the other things are but if they find them the state has the right to get a warrant to compel me to open the safe. That is long standing case law.

In this case if they didn't have the laptop but knew she had one she could plee the 5th and not tell them where it is. But since they have it she can (or at least IMO) be compelled to give up the password. She doesn't however have to tell them which files, folders ect would/could be evidence.

Personally I'm not sure I like the idea. I think it draws to close to not have any personal protections at all. We are already sliding down a bad slope with warrantless tracking, eavesdroping ect. This is just one more step down that hill.

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tkid124

The US 5th amendment says:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

The pertinent part of the amendment to this case is: "nor shall be compelled in any criminal case to be a witness against himself". She is being compelled to hand over her password, after the accepted due process of law, IE a search warrant. Her lawyer not anyone else is arguing that the search warrant is not valid for the data, her lawyer is arguing that she would become a witness against herself if she is forced to hand over the password. She is not being asked to decipher, or even disclose the information's location. They have a search warrant, which I would assume by now at least clearly states that a judge has approved their search of digital data. This gives law enforcement every right to search her computer and compels her and anyone else to grant access to that resource.

This case is on a slippery slope, if she had created artwork to hide the data, I would not support her ever being forced to decipher it. But she has a lock on her computer, the police have a search warrant that grants them the right to search for evidence. She has a right to say nothing, but she must grant them access otherwise she is in violation of the judges order, IE the search warrant.

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Eoraptor

As much as I would love to jump on the bandwagon of stopping big police and big government intruisions into our lives, in this case I can't.

As the article points out, this is fundamentally no different than demanding keys to a storage shed, safe, or lockbox be turned over. Presumably the warrant coveres "any financial data pertaining to potential bank fraud" and that would include spreadsheets and electronic communications stored on the computer. If its in the warrant, then she must comply or get "Obstruction of justice" chagres lumped in on top of the case already against her. the fact that there may be non-case-related materials on the laptop is in the same vein as if she stored pictures of her cat in a safe deposit box along with the pinky fingers of her slain enemies.

The test here should be not on forcing her to provide the keys, but on the limits of what can be done with the data found on the PC afterwards. For instance, are pictures of her on vacation fair game as "money she may have used as a product of her fraud for personal gain" the same as financial records and emails? Or can they give any songs or movies they find on it to RIAA to sick them on her as well, even though that was not in the warrant?

that's the problem with digital life, our professional, personal, and criminal existences are all suddenly tied together, and no one has yet tested those limits (remember getting your laptop siezed at the border with no probabaly cause? where's our protection against search and siezure there?

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Keith E. Whisman

I have no problems giving the court all my computers and data disks and what not. I just won't help unlock that stuff. I forgot what I did with the password. Oops. I lost the key or the combination. I just don't believe she has to do anymore then give up the computers. It's up to the courts to gain access to the evidence. Claim the Fifth. What is the passward, I claim the fifth. 

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thegreatgoat

I don't understand why she just doesn't forget the password. I am sure the stress could cause memory loss. Just like losing a key. If I hid a gun that I used to murder someone they can ask me where it is but I don’t have to tell them, same thing here.

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bloodgain

That's sort of what I thought. How is this even a question?

"My password? Oh, shoot, I forgot it. I did that last year, too, and had to reinstall everything. I was so mad, because I lost all my receipts, so I didn't even get to claim my sales tax!"

Go ahead, bring me up for obstruction -- you just have to prove I know the password and am willingly withholding information. I'll bring you 100 expert tech support witnesses that will tell you 90% of their calls are "I forgot my password."

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Wingzero_x

And let's not forget the fact that this is Colorado we're talking about. the same ones who could never figure out who killed Jon Benet, even though everybody in America knows it was probably the mother. So they'll never think to just hand it over to the FBI, or CIA and say do your magic.

 

 

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Keith E. Whisman

That's simple, yes. The fifth amendment protects you from being forced or compelled to help the state build charges against you. You don't have to make statements or provide evidence to help the states case against you. If the state wants to prosecute you and throw you in prison then they will have to do all the leg work. All of it. I wouldn't tell the state which key is my house key and I wouldn't give them any passwords. I obey the law and I love the police more than most people but I won't support a police state nor will I sit back and allow the state to trample on our rights and freedoms in the name of security, safety, and law enforcement. If the state needs you to provide evidence against yourself to get a conviction then they don't have the evidence to hold you and should let you go until they do. You are innocent until proved guilty and people have forgotten that. 

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Wingzero_x

Just hold her for tampering with evidence. ;)

Really though, though I think this is just another criminal trying to use the Constitution against itself. Having that password is no different than having a key, and if you have a key you can be made to hand it over. This computer is no different from a filing cabinet in that regard.

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big_montana

If I am her I would just tell the judge "Password" Waht password" You ahve had my laptop for so long I do not remember it" Prove otherwise.

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schwit

No defendant should be forced to aide in their own prosecution.

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Tenhawk

Seems pretty clear, really. In the US, as I understand it, you can't be forced to give testimony that may incriminate yourself. Providing someone with the keys to your personal data would seem to fall under that category. There's nothing preventing them from attempting to break the encryption or locate your keys in your home if you wrote them down, but being forced to give evidence against yourself is specifically exempted from US Law.

Claiming that not doing so is an admission of guilt is complete crap, otherwise anyone who 'took the fifth' in court would be found guilty and the whole point of that constitutional point would be invalid.

Maybe I'm missing something here, but I don't see where it's even a question.

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