8 ms·

Your interpretation of the 5th amendment is quite different than it has been historically interpreted by the courts. For example, in a trial, the prosecutor mi

Your interpretation of the 5th amendment is quite different than it has been historically interpreted by the courts. For example, in a trial, the prosecutor might subpoena some documents and you cannot refuse to turn over those documents, unless doing so would trigger a 5th amendment assertion. Turning over the documents implicitly testifies to at least two important pieces of information: that the documents exist and that you know about the documents. So if you're asked for the documents and the prosecution has no evidence that the documents exist or that you know about them, the 5th will cover you. However if during a police interrogation you admit that the documents exist, when they are subpoenaed, you can't withhold evidence. I imagine that the 5th will work much the same with passwords. If it is known that you have the ability to unlock the device, refusing to do so will be withholding evidence. However if revealing the password implicitly reveals the hitherto unknown information that you know the password, 5th will work.

Sir_Substance 10y ago
So here's my concern: guy's now been in jail without charge for 18 months. The prosecutors say his guilt is a foregone conclusion, but apparently it's not foregone enough that they're willing to go ahead and prosecute without the contents of his hard drive. They're gonna hold off until they get what they need. We're starting to get to the edge of the point where this guy might legitimately forget his password. I think we can assume the FBI has been running a common passwords/dictionary attack with common password symbol substitutions for the last 18 months, and apparently they haven't found the answer, so this password is probably a pretty good one that's not based on a word or even a sentence. If he stays in jail without trial for another two years and then says "I can't remember my password any more", what should we do?
- dublinclontarf 10y ago
  > what should we do? Release him and pay millions in compensation for violating his writ of Habeas corpus.
  - umanwizard 10y ago
    A court granted him a writ of habeas corpus? When? That changes everything if true, but I'm pretty sure you're mistaken.
  - pessimizer 10y ago
    Not in the US: http://www.nytimes.com/2011/12/02/us/senate-declines-to-resolve-issue-of-american-qaeda-suspects-arrested-in-us.html?ref=us http://www.nytimes.com/2011/12/02/us/senate-declines-to-reso...
  - pc86 10y ago
    That's not what Habeas corpus is. Contempt is 100% lawful.
- mickronome 10y ago
  Good point, I definitely can't remember my more complex passwords for more than a month or two if I'm not using them. It is also not too hard to essentially forget a complex password by either 'blanking it out', or associating it with multiple similar paswords during recall. There are no easy solutions to encryption in this context, apart from what it clearly tells us: That society needs to focus on prevention and care, and not rely on policing and punishment to keep society safe as much as now.
- erelde 10y ago
  > I think we can assume the FBI has been running a common passwords/dictionary attack with common password symbol substitutions for the last 18 months I would like to believe they do... But I don't think they'd bother with that.
  - erelde 10y ago
    How many 20 characters passwords could we try in 600 days ? And by imaging the original drive unto multiple others ? I mean 18 months. It's a lot.
    - RandomException 10y ago
      Not worth the resources though.
      - Sir_Substance 10y ago
        Well, certainly not if the judge is willing to allow indefinite detention without trial. That's one of the key concerns I have with this case. I'm not seeing presumption of innocence play out here. The west used to mock and deride the USSR for this kind of thing.
- pmyteh 10y ago
  Civil contempt is coercive, not punitive. In theory, he gets released when it's clear that he won't decrypt the drive even if indefinitely incarcerated. So in principle, in the event you describe, we let him out. Of course, knowing that he actually has forgotten the password is somewhat tricky, so what would actually happen is anyone's guess.
  - deleted 10y ago
    [deleted]
- pbhjpbhj 10y ago
  Perhaps the FBI have unlocked it, but them having the password doesn't prove that the accused had it. My guess is they wouldn't be pushing on with the case if they didn't know for sure that access would 'demonstrate' criminality. Similarly I imagine the accused knows that if they admit access they're going to spend a lot longer incarcerated. An impasse for our times
  - stult 10y ago
    That is precisely the scenario that actually would violate the Fifth Amendment, because it forces him to be a witness against himself.
    - pbhjpbhj 10y ago
      So if, for example, a person had illicit photos/documents in a safe, then the police couldn't ask them for the combination? Or if they gave the combination the evidence then retrieved would be inadmissible? Surely it's the pre-existing evidence that [potentially] stands against the accused, not their "speech" that enables access to that evidence. Who does such an interpretation of The Fifth protect?
      - pc86 10y ago
        As the courts have interpreted it, 5A protects you if they can't even prove the safe is yours, or if otherwise admitting that you know the combination or that you know what's in the safe would result in incriminating testimony. 5A doesn't apply here because they know the device is his, and that prior to his arrest he had regular access to it. It's not incriminating testimony, it's delivery of evidence in a criminal trial subject to a lawful subpoena.
        dragonwriter 10y ago
        Delivery of evidence is delivering the hard drive; changing the state of the evidence is a concretely different thing. It amounts to interpreting the existing evidence for law enforcement.
- brownbat 10y ago
  He goes free in 14 years or sets a new record. Up to the judge. http://abcnews.go.com/2020/story?id=8101209&page=1 http://abcnews.go.com/2020/story?id=8101209&page=1
  - chiph 10y ago
    That guy sets a new record for cussedness.
- rayiner 10y ago
  > So here's my concern: guy's now been in jail without charge for 18 months. The prosecutors say his guilt is a foregone conclusion That's not what the "foregone conclusion" stuff is about, at all. They're not saying "it's obvious he's guilty so the 5th amendment does not apply." The 5th amendment doesn't apply to handing over evidence, period. It's about the circumstances under which handing over evidence (which ordinarily does not implicate the 5th amendment) involves implicit statements or assertions by the defendant (which does). Read the subpoena example in the opinion, it clarifies.
  - Sir_Substance 10y ago
    None of that is why I'm bringing it up. I bring it up to point out that we have no reason to believe that the prosecution won't request indefinite detention until he gives up the password, even if it might be impossible for him to do so.
  - some_guy_there 10y ago
    Take this comment as what I think 5th amendment should imply, not how it is currently applied by the courts. The concept of forgone conclusion is very weird. Imagine that I tell someone that I maintain a diary with log of all the events everyday. Then I tell this to my friends, family, (the police), etc. Let's say the prosecution can prove that I was at a spot where something illegal happened. If they knew I wrote a diary everyday, they can compel me to produce my diary, which will then be used against me (if needed). If on the other hand, I tell everyone (and the police) that I have photographic memory and remember anything I see and do, that information is protected by fifth amendment. So in this case, I won't provide something that will be used against me. It is very weird that when the plain words of the amendment read "compelled in any criminal case to be a witness against himself", it is only thought to include literal production of testimony from mind as confession, while on the other hand, the first amendment is not read literally to allow only freedom of (say) owning a press, the press being a physical printing press.
    - tripzilch 10y ago
      What is weird is basing a legal system around the constant re-interpretation of documents written hundreds of years ago and the implication that subtle nuances in ancient wording reveal a thus far hidden intent that somehow predicted today's technological advancements, society, their relevance and how these texts should be applied in today's light.
mickronome 10y ago
There are, as far as I can tell some weaknesses in that argument, at least from a lay perspective. - There must be evidence that I can unlock the device for the two situations to be equivalent, and the request must be for specific documents known to exist. If they don't exist all evidence found must be invalidated because the cause for the search was invalid. - If evidence of ability to unlock the device does not exists, but the assumption is that since it's mine I can unlock it, I think the analogy is slightly flawed. Since the ask is now not about producing a specific thing I'm known to possess, I'm indirectly being asked to produce a document (password), albeit not in material form but typed on a keyboard. Since it's never been proved that I actually am able to open it, the situation is not equivalent, but more like there being a safe in my house that nobody has seen me open, no key is know to exist, but since I own the house I am assumed to be able to open it, and I'm held in contempt because I say I can't or won't open it. It's not too uncommon for a house to contain a safe the current owner can't open, but it does not lead to the same situation since it can usually be forced open. The only difference with good encryption is that the option to use force has become increasingly impotent. - Unlocking a computer without proper limits and auditing of the search is also more like being asked to give access to any document storage rooms I own or have access to. Reason being that unlocking a device will in many cases give access to more than the bare contents of the drive, giving access to emails, Dropbox, and other logged on applications and sessions. Since parallel construction appear to be a thing, it's ripe for abuse. Maybe there needs to be a process where independent auditors can, under surveillance of the defendants lawyer produce named documents from seized evidence, as giving police and/or prosecutors blanket access to devices entire content could create lots of opportunities to create parallel construction stories for any content found not under the current warrant, and as bizarre parallel construction is, it appears to have been used.
erelde 10y ago
But passwords and hard drives are not documents. What's on it are "documents" but it's akin to refusing to pull memories out of your brain.
- harryh 10y ago
  The purpose of the prohibition against testifying against oneself in the 5th amendment is not a protection of one's privacy (as many here seem to believe). It is to precent coerced false confessions. The difference between false testimony and a falsely revealed password is that the testimony is not obviously false but the password will be.
ominous 10y ago
If a confession can be evidence of being guilty, refusing to confess is to withhold evidence?
- theprotocol 10y ago
  But you don't yet know that it's evidence of guilt. Additionally, testimony can be counted as evidence, yet the 5th Amendment allows you not to testify if doing so would incriminate you. So something being evidence is not unconditional in needing to be turned over.
msravi 10y ago
Let's say a guy has some documents that he happened to show someone that can implicate him in a crime. The person he showed it to testifies that the guy showed it to him/her. Can he be held until he turns over those documents?
- lsaferite 10y ago
  Well, seeing that this is what is currently happening, I'd say the answer is "Yes."
BearGoesChirp 10y ago
>Your interpretation of the 5th amendment is quite different than it has been historically interpreted by the courts. Part of the issue seems to be the courts are very proficient in coming up with very interesting interpretations. It feels a lot like a literature or art interpretation class, where everything is BS but a lot of people have a bunch of rules convincing them they aren't. Then again, the founding father's weren't too much different. Founding fathers: "All men created equally". Also founding fathers: owns slaves (some at least)
- brightball 10y ago
  Have you ever read up on why Jefferson chose those words?
  - samfisher83 10y ago
    They thought British would beat confessions out of people which still somewhat happens.
- rayiner 10y ago
  The word "witness" is a legal term with a specific meaning. It requires providing testimonial evidence. The landlord that unlocks the defendant's apartment where the bodies are stored in the fridge is not a "witness" even though he helped the police get evidence.
  - marcosdumay 10y ago
    And here we are, talking about a guy presumed to have some information on his head, arrested for refusing to disclose that information, in a thread about legal professionals creating BS, with somebody arguing that "witness" has a legal meaning that does not cover people disclosing information they have on their heads... Or, at least not on this case.
    - rayiner 10y ago
      > arrested for refusing to disclose that information The information in the guy's head is the password. They're not asking him for the password. They're asking him to perform the action of decrypting the drive. They explicitly told him he could keep the password secret.
Allower 10y ago
Don't be retarded, you are basically saying one cannot plead the 5th regarding their password, but they CAN plead the 5th regarding their password hint. This is abusrd
tynpeddler 10y ago
The police are asking this guy to produce a document that does not currently exist. The police are effectively asking this guy to take a document they do have and is useless (the encrypted hard drive), and using the contents of his own mind to transform it into a document that is useful to them.
futun 10y ago
Right, but in that case the court is asking for specific documents which it knows exists. In this case, the court is asking the man to provide evidence which the court is not aware of. And there also might be evidence for other crimes which the court isn't aware of. This is also a right to privacy issue.
- benchaney 10y ago
  If the court knew that the documents existed, he would have been convicted for possession of child porn by now. The court thinks that the documents exist, but obviously they can't prove it.
deleted 10y ago
[deleted]

Sir_Substance 10y ago

So here's my concern: guy's now been in jail without charge for 18 months. The prosecutors say his guilt is a foregone conclusion, but apparently it's not foregone enough that they're willing to go ahead and prosecute without the contents of his hard drive. They're gonna hold off until they get what they need. We're starting to get to the edge of the point where this guy might legitimately forget his password. I think we can assume the FBI has been running a common passwords/dictionary attack with common password symbol substitutions for the last 18 months, and apparently they haven't found the answer, so this password is probably a pretty good one that's not based on a word or even a sentence. If he stays in jail without trial for another two years and then says "I can't remember my password any more", what should we do?

dublinclontarf 10y ago
> what should we do? Release him and pay millions in compensation for violating his writ of Habeas corpus.
- umanwizard 10y ago
  A court granted him a writ of habeas corpus? When? That changes everything if true, but I'm pretty sure you're mistaken.
- pessimizer 10y ago
  Not in the US: http://www.nytimes.com/2011/12/02/us/senate-declines-to-resolve-issue-of-american-qaeda-suspects-arrested-in-us.html?ref=us http://www.nytimes.com/2011/12/02/us/senate-declines-to-reso...
- pc86 10y ago
  That's not what Habeas corpus is. Contempt is 100% lawful.
mickronome 10y ago
Good point, I definitely can't remember my more complex passwords for more than a month or two if I'm not using them. It is also not too hard to essentially forget a complex password by either 'blanking it out', or associating it with multiple similar paswords during recall. There are no easy solutions to encryption in this context, apart from what it clearly tells us: That society needs to focus on prevention and care, and not rely on policing and punishment to keep society safe as much as now.
erelde 10y ago
> I think we can assume the FBI has been running a common passwords/dictionary attack with common password symbol substitutions for the last 18 months I would like to believe they do... But I don't think they'd bother with that.
- erelde 10y ago
  How many 20 characters passwords could we try in 600 days ? And by imaging the original drive unto multiple others ? I mean 18 months. It's a lot.
  - RandomException 10y ago
    Not worth the resources though.
    - Sir_Substance 10y ago
      Well, certainly not if the judge is willing to allow indefinite detention without trial. That's one of the key concerns I have with this case. I'm not seeing presumption of innocence play out here. The west used to mock and deride the USSR for this kind of thing.
pmyteh 10y ago
Civil contempt is coercive, not punitive. In theory, he gets released when it's clear that he won't decrypt the drive even if indefinitely incarcerated. So in principle, in the event you describe, we let him out. Of course, knowing that he actually has forgotten the password is somewhat tricky, so what would actually happen is anyone's guess.
- deleted 10y ago
  [deleted]
pbhjpbhj 10y ago
Perhaps the FBI have unlocked it, but them having the password doesn't prove that the accused had it. My guess is they wouldn't be pushing on with the case if they didn't know for sure that access would 'demonstrate' criminality. Similarly I imagine the accused knows that if they admit access they're going to spend a lot longer incarcerated. An impasse for our times
- stult 10y ago
  That is precisely the scenario that actually would violate the Fifth Amendment, because it forces him to be a witness against himself.
  - pbhjpbhj 10y ago
    So if, for example, a person had illicit photos/documents in a safe, then the police couldn't ask them for the combination? Or if they gave the combination the evidence then retrieved would be inadmissible? Surely it's the pre-existing evidence that [potentially] stands against the accused, not their "speech" that enables access to that evidence. Who does such an interpretation of The Fifth protect?
    - pc86 10y ago
      As the courts have interpreted it, 5A protects you if they can't even prove the safe is yours, or if otherwise admitting that you know the combination or that you know what's in the safe would result in incriminating testimony. 5A doesn't apply here because they know the device is his, and that prior to his arrest he had regular access to it. It's not incriminating testimony, it's delivery of evidence in a criminal trial subject to a lawful subpoena.
      - dragonwriter 10y ago
        Delivery of evidence is delivering the hard drive; changing the state of the evidence is a concretely different thing. It amounts to interpreting the existing evidence for law enforcement.
brownbat 10y ago
He goes free in 14 years or sets a new record. Up to the judge. http://abcnews.go.com/2020/story?id=8101209&page=1 http://abcnews.go.com/2020/story?id=8101209&page=1
- chiph 10y ago
  That guy sets a new record for cussedness.
rayiner 10y ago
> So here's my concern: guy's now been in jail without charge for 18 months. The prosecutors say his guilt is a foregone conclusion That's not what the "foregone conclusion" stuff is about, at all. They're not saying "it's obvious he's guilty so the 5th amendment does not apply." The 5th amendment doesn't apply to handing over evidence, period. It's about the circumstances under which handing over evidence (which ordinarily does not implicate the 5th amendment) involves implicit statements or assertions by the defendant (which does). Read the subpoena example in the opinion, it clarifies.
- Sir_Substance 10y ago
  None of that is why I'm bringing it up. I bring it up to point out that we have no reason to believe that the prosecution won't request indefinite detention until he gives up the password, even if it might be impossible for him to do so.
- some_guy_there 10y ago
  Take this comment as what I think 5th amendment should imply, not how it is currently applied by the courts. The concept of forgone conclusion is very weird. Imagine that I tell someone that I maintain a diary with log of all the events everyday. Then I tell this to my friends, family, (the police), etc. Let's say the prosecution can prove that I was at a spot where something illegal happened. If they knew I wrote a diary everyday, they can compel me to produce my diary, which will then be used against me (if needed). If on the other hand, I tell everyone (and the police) that I have photographic memory and remember anything I see and do, that information is protected by fifth amendment. So in this case, I won't provide something that will be used against me. It is very weird that when the plain words of the amendment read "compelled in any criminal case to be a witness against himself", it is only thought to include literal production of testimony from mind as confession, while on the other hand, the first amendment is not read literally to allow only freedom of (say) owning a press, the press being a physical printing press.
  - tripzilch 10y ago
    What is weird is basing a legal system around the constant re-interpretation of documents written hundreds of years ago and the implication that subtle nuances in ancient wording reveal a thus far hidden intent that somehow predicted today's technological advancements, society, their relevance and how these texts should be applied in today's light.

mickronome 10y ago

There are, as far as I can tell some weaknesses in that argument, at least from a lay perspective. - There must be evidence that I can unlock the device for the two situations to be equivalent, and the request must be for specific documents known to exist. If they don't exist all evidence found must be invalidated because the cause for the search was invalid. - If evidence of ability to unlock the device does not exists, but the assumption is that since it's mine I can unlock it, I think the analogy is slightly flawed. Since the ask is now not about producing a specific thing I'm known to possess, I'm indirectly being asked to produce a document (password), albeit not in material form but typed on a keyboard. Since it's never been proved that I actually am able to open it, the situation is not equivalent, but more like there being a safe in my house that nobody has seen me open, no key is know to exist, but since I own the house I am assumed to be able to open it, and I'm held in contempt because I say I can't or won't open it. It's not too uncommon for a house to contain a safe the current owner can't open, but it does not lead to the same situation since it can usually be forced open. The only difference with good encryption is that the option to use force has become increasingly impotent. - Unlocking a computer without proper limits and auditing of the search is also more like being asked to give access to any document storage rooms I own or have access to. Reason being that unlocking a device will in many cases give access to more than the bare contents of the drive, giving access to emails, Dropbox, and other logged on applications and sessions. Since parallel construction appear to be a thing, it's ripe for abuse. Maybe there needs to be a process where independent auditors can, under surveillance of the defendants lawyer produce named documents from seized evidence, as giving police and/or prosecutors blanket access to devices entire content could create lots of opportunities to create parallel construction stories for any content found not under the current warrant, and as bizarre parallel construction is, it appears to have been used.

erelde 10y ago

But passwords and hard drives are not documents. What's on it are "documents" but it's akin to refusing to pull memories out of your brain.

harryh 10y ago
The purpose of the prohibition against testifying against oneself in the 5th amendment is not a protection of one's privacy (as many here seem to believe). It is to precent coerced false confessions. The difference between false testimony and a falsely revealed password is that the testimony is not obviously false but the password will be.

ominous 10y ago

If a confession can be evidence of being guilty, refusing to confess is to withhold evidence?

theprotocol 10y ago
But you don't yet know that it's evidence of guilt. Additionally, testimony can be counted as evidence, yet the 5th Amendment allows you not to testify if doing so would incriminate you. So something being evidence is not unconditional in needing to be turned over.

msravi 10y ago

Let's say a guy has some documents that he happened to show someone that can implicate him in a crime. The person he showed it to testifies that the guy showed it to him/her. Can he be held until he turns over those documents?

lsaferite 10y ago
Well, seeing that this is what is currently happening, I'd say the answer is "Yes."

BearGoesChirp 10y ago

>Your interpretation of the 5th amendment is quite different than it has been historically interpreted by the courts. Part of the issue seems to be the courts are very proficient in coming up with very interesting interpretations. It feels a lot like a literature or art interpretation class, where everything is BS but a lot of people have a bunch of rules convincing them they aren't. Then again, the founding father's weren't too much different. Founding fathers: "All men created equally". Also founding fathers: owns slaves (some at least)

brightball 10y ago
Have you ever read up on why Jefferson chose those words?
- samfisher83 10y ago
  They thought British would beat confessions out of people which still somewhat happens.
rayiner 10y ago
The word "witness" is a legal term with a specific meaning. It requires providing testimonial evidence. The landlord that unlocks the defendant's apartment where the bodies are stored in the fridge is not a "witness" even though he helped the police get evidence.
- marcosdumay 10y ago
  And here we are, talking about a guy presumed to have some information on his head, arrested for refusing to disclose that information, in a thread about legal professionals creating BS, with somebody arguing that "witness" has a legal meaning that does not cover people disclosing information they have on their heads... Or, at least not on this case.
  - rayiner 10y ago
    > arrested for refusing to disclose that information The information in the guy's head is the password. They're not asking him for the password. They're asking him to perform the action of decrypting the drive. They explicitly told him he could keep the password secret.

Allower 10y ago

Don't be retarded, you are basically saying one cannot plead the 5th regarding their password, but they CAN plead the 5th regarding their password hint. This is abusrd

tynpeddler 10y ago

The police are asking this guy to produce a document that does not currently exist. The police are effectively asking this guy to take a document they do have and is useless (the encrypted hard drive), and using the contents of his own mind to transform it into a document that is useful to them.

futun 10y ago

Right, but in that case the court is asking for specific documents which it knows exists. In this case, the court is asking the man to provide evidence which the court is not aware of. And there also might be evidence for other crimes which the court isn't aware of. This is also a right to privacy issue.

benchaney 10y ago
If the court knew that the documents existed, he would have been convicted for possession of child porn by now. The court thinks that the documents exist, but obviously they can't prove it.

deleted 10y ago

[deleted]