5 ms·

But they can't punish you for not giving them the combination. Yes, they can. If the judge has reasonable grounds to believe that you are withholding evidence

by evgen 17y ago

But they can't punish you for not giving them the combination. Yes, they can. If the judge has reasonable grounds to believe that you are withholding evidence or the knowledge necessary for law enforcement to collect this evidence then the judge can hold you in contempt of court and place you in jail until you agree to provide the information. While there have been a couple of aberrations in the general flow of case law to a standard consensus on the matter, the general consensus (at least at the federal level) is that being compelled to provide an encryption key is not covered by the 5th amendment's protection against self-incrimination.

karzeem 17y ago
There's a subtle distinction to be made here between providing the key and providing access. Courts have ruled that the Constitution permits the government to compel you to provide access to the relevant information (e.g. to open the safe). But you don't have to give the government the combination. Just open the safe for them, and you can keep the combination to yourself. Anyway, that doesn't really change the basic fact — if law enforcement has a warrant for information that's locked away, a defendant can be compelled to provide the information.
- jrockway 17y ago
  Citation? (And I'm not asking to be snarky. I need more information before I decide to run for public office and change the law :)
  - karzeem 17y ago
    http://arstechnica.com/tech-policy/news/2009/03/court-self-incrimination-privilege-stops-with-passwords.ars http://arstechnica.com/tech-policy/news/2009/03/court-self-i... That page has a link to the District Court ruling in Boucher.
    - jrockway 17y ago
      The sticking point for this one, though, is that customs already saw the child porn. After seeing that, they lost the key, and wants Boucher to provide them with one. That's a little different than "we think you might possibly have something on this computer", which is still untested. Also, they appealed. Considering child porn gets you more time than homicide these days, I would wait until the case if over before deciding that encrypting your hard drive is a waste. You can always decrypt, you can't always encrypt.
      - Nelson69 17y ago
        I couldn't point you to a citation but you can google around, courts have compelled lockers to be opened, safes to be opened, and they've compelled people to decrypt things. The fifth amendment applies to words you say, not evidence. The "pass phrase" is access to the evidence, not testimony against yourself. It's a losing battle anyways, a judge demands you turn over the passphrase or unlock the data and throws you in jail until you do. You could attempt to take it to the supreme court or something, but you're in jail during that process. Likewise, you could try to give them the wrong key with truecrypt or something but that assumes that they are idiots. If you find yourself in court in this situation, you've already lost, you're almost certainly going to spend time in jail.
jrockway 17y ago
Where's your citation for this? As far as I know, no clear-cut case has been tested yet. Either way, if you are paranoid, the solution is hidden volumes. If the government can't prove you have an encrypted disk, they can't compel you to reveal its contents.

by evgen 17y ago

karzeem 17y ago

There's a subtle distinction to be made here between providing the key and providing access. Courts have ruled that the Constitution permits the government to compel you to provide access to the relevant information (e.g. to open the safe). But you don't have to give the government the combination. Just open the safe for them, and you can keep the combination to yourself. Anyway, that doesn't really change the basic fact — if law enforcement has a warrant for information that's locked away, a defendant can be compelled to provide the information.

jrockway 17y ago
Citation? (And I'm not asking to be snarky. I need more information before I decide to run for public office and change the law :)
- karzeem 17y ago
  http://arstechnica.com/tech-policy/news/2009/03/court-self-incrimination-privilege-stops-with-passwords.ars http://arstechnica.com/tech-policy/news/2009/03/court-self-i... That page has a link to the District Court ruling in Boucher.
  - jrockway 17y ago
    The sticking point for this one, though, is that customs already saw the child porn. After seeing that, they lost the key, and wants Boucher to provide them with one. That's a little different than "we think you might possibly have something on this computer", which is still untested. Also, they appealed. Considering child porn gets you more time than homicide these days, I would wait until the case if over before deciding that encrypting your hard drive is a waste. You can always decrypt, you can't always encrypt.
    - Nelson69 17y ago
      I couldn't point you to a citation but you can google around, courts have compelled lockers to be opened, safes to be opened, and they've compelled people to decrypt things. The fifth amendment applies to words you say, not evidence. The "pass phrase" is access to the evidence, not testimony against yourself. It's a losing battle anyways, a judge demands you turn over the passphrase or unlock the data and throws you in jail until you do. You could attempt to take it to the supreme court or something, but you're in jail during that process. Likewise, you could try to give them the wrong key with truecrypt or something but that assumes that they are idiots. If you find yourself in court in this situation, you've already lost, you're almost certainly going to spend time in jail.

jrockway 17y ago

Where's your citation for this? As far as I know, no clear-cut case has been tested yet. Either way, if you are paranoid, the solution is hidden volumes. If the government can't prove you have an encrypted disk, they can't compel you to reveal its contents.