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One way or another, it looks like we'll find out if the 5th Amendment still holds any water in this country. My guess is probably not, but it all depends on how

by joesmo 10y ago

One way or another, it looks like we'll find out if the 5th Amendment still holds any water in this country. My guess is probably not, but it all depends on how much money this guy has, I imagine.

Joof 10y ago
I wonder if the EFF is bold enough / has the resources to help. Encryption really should fall under the fifth. In this case he isn't charged with anything, so I'm not sure the fifth applies? I want a lawyer friend lol.
- joesmo 10y ago
  The 5th Amendment always applies. It is a right I have always, no matter what that cannot be legally removed. I do not have to be charged with anything to exercise it. This is a common misconception. If testimony is compelled, as in this case, I have a right not to self-incriminate. The government does not have a right to deny my other rights, like they are doing here, by holding me indefinitely without charges (cruel and unusual punishment, denial of due process). But all of the above is purely theoretical these days. As you can see, our government can do whatever it wants with little to no consequences. The Constitution isn't worth the paper it was written on and talking about 'justice' in America is like some sort of sick joke (this has always been true in America's history except as it applies to small classes of highly privileged, rich, white people).
- maxerickson 10y ago
  The article mentions that the EFF is involved. http://arstechnica.co.uk/wp-content/uploads/2016/04/effamicus.pdf http://arstechnica.co.uk/wp-content/uploads/2016/04/effamicu...
- mjevans 10y ago
  If he's not charged with anything, then why do they need to know what's on his encrypted drives (which he may or may not be able to access anyway).
  - peeters 10y ago
    When you are laying charges, evidence comes first, then the charge. To collect the evidence you conduct interviews and subpoena documents. This is part of the evidence gathering phase that establishes whether the government has a case, preceding laying charges.
  - justinlardinois 10y ago
    They have a warrant for the contents of his drives.
    - Zigurd 10y ago
      They have the content of his drives. The content is indistinguishable from random numbers. Same as if they found printed cyphertext in his home.
      - justinlardinois 10y ago
        You're ignoring the context of the comment I replied to.
        Zigurd 10y ago
        How so? Had they found printed cyphertext in his house, would he be in jail? Or, more cogently, one sheaf of random numbers and one of cyphertext? The point is, the whole "lock" analogy is wrong. Encryption is not an unbreakable lock, nor is it a game-changer. It's been there for hundreds of years at least, as long as there have been cyphers.
- biot 10y ago
  From the fine article we're discussing: The Electronic Frontier Foundation has weighed in on the suspect's plight, telling the circuit court in a friend-of-the-court brief (PDF) that "compelled decryption is inherently testimonial because it compels a suspect to use the contents of their mind to translate unintelligible evidence into a form that can be used against them. The Fifth Amendment provides an absolute privilege against such self-incriminating compelled decryption."
- FireBeyond 10y ago
  It's a cute little play. He's not charged with anything, so he can't claim his rights under the Fifth. Of course when he does reveal, assuming there is, he can be charged, and cannot retroactively apply the Fifth.
  - LanceH 10y ago
    By providing the password, he also acknowledges the hard drives/computers are his. There could be nothing on them and they could charge him with theft of the drives, with proof being that he provided the password to them. However audacious it is to deny (or not admit) ownership of something so obviously in his possession, it is his right.
rhino369 10y ago
The way that the Supreme Court has decided cases about safe combinations in the past this court pretty much has to find that the 5th Amendment covers encryption keys. But to play devils advocate, I don't think it would destroy the 5th Amendment to treat an encryption key the same as a physical key.
- logfromblammo 10y ago
  A physical key is not equivalent to an encryption key. It is equivalent to an encryption key that has been printed out on a piece of paper to be kept in your pocket. That hair is quite thick enough to be splittable.

by joesmo 10y ago

One way or another, it looks like we'll find out if the 5th Amendment still holds any water in this country. My guess is probably not, but it all depends on how much money this guy has, I imagine.

Joof 10y ago

I wonder if the EFF is bold enough / has the resources to help. Encryption really should fall under the fifth. In this case he isn't charged with anything, so I'm not sure the fifth applies? I want a lawyer friend lol.

joesmo 10y ago
The 5th Amendment always applies. It is a right I have always, no matter what that cannot be legally removed. I do not have to be charged with anything to exercise it. This is a common misconception. If testimony is compelled, as in this case, I have a right not to self-incriminate. The government does not have a right to deny my other rights, like they are doing here, by holding me indefinitely without charges (cruel and unusual punishment, denial of due process). But all of the above is purely theoretical these days. As you can see, our government can do whatever it wants with little to no consequences. The Constitution isn't worth the paper it was written on and talking about 'justice' in America is like some sort of sick joke (this has always been true in America's history except as it applies to small classes of highly privileged, rich, white people).
maxerickson 10y ago
The article mentions that the EFF is involved. http://arstechnica.co.uk/wp-content/uploads/2016/04/effamicus.pdf http://arstechnica.co.uk/wp-content/uploads/2016/04/effamicu...
mjevans 10y ago
If he's not charged with anything, then why do they need to know what's on his encrypted drives (which he may or may not be able to access anyway).
- peeters 10y ago
  When you are laying charges, evidence comes first, then the charge. To collect the evidence you conduct interviews and subpoena documents. This is part of the evidence gathering phase that establishes whether the government has a case, preceding laying charges.
- justinlardinois 10y ago
  They have a warrant for the contents of his drives.
  - Zigurd 10y ago
    They have the content of his drives. The content is indistinguishable from random numbers. Same as if they found printed cyphertext in his home.
    - justinlardinois 10y ago
      You're ignoring the context of the comment I replied to.
      - Zigurd 10y ago
        How so? Had they found printed cyphertext in his house, would he be in jail? Or, more cogently, one sheaf of random numbers and one of cyphertext? The point is, the whole "lock" analogy is wrong. Encryption is not an unbreakable lock, nor is it a game-changer. It's been there for hundreds of years at least, as long as there have been cyphers.
biot 10y ago
From the fine article we're discussing: The Electronic Frontier Foundation has weighed in on the suspect's plight, telling the circuit court in a friend-of-the-court brief (PDF) that "compelled decryption is inherently testimonial because it compels a suspect to use the contents of their mind to translate unintelligible evidence into a form that can be used against them. The Fifth Amendment provides an absolute privilege against such self-incriminating compelled decryption."
FireBeyond 10y ago
It's a cute little play. He's not charged with anything, so he can't claim his rights under the Fifth. Of course when he does reveal, assuming there is, he can be charged, and cannot retroactively apply the Fifth.
- LanceH 10y ago
  By providing the password, he also acknowledges the hard drives/computers are his. There could be nothing on them and they could charge him with theft of the drives, with proof being that he provided the password to them. However audacious it is to deny (or not admit) ownership of something so obviously in his possession, it is his right.

rhino369 10y ago

The way that the Supreme Court has decided cases about safe combinations in the past this court pretty much has to find that the 5th Amendment covers encryption keys. But to play devils advocate, I don't think it would destroy the 5th Amendment to treat an encryption key the same as a physical key.

logfromblammo 10y ago
A physical key is not equivalent to an encryption key. It is equivalent to an encryption key that has been printed out on a piece of paper to be kept in your pocket. That hair is quite thick enough to be splittable.