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My analogy would be that 1. There is an unbreakable safe 2. The judge believes he has the key to the unbreakable safe 3. They know there is evidence insi

by jo909 9y ago

My analogy would be that 1. There is an unbreakable safe 2. The judge believes he has the key to the unbreakable safe 3. They know there is evidence inside the safe 4. They ask him to unlock the safe 5. He refuses to do so, so they try to force him by jailing him They do not ask him to testify about the safes contents or even to hand over the key, just to "insert and turn the key". And their argument is that he can not refuse that by pleading the fifth. In a physical world they would be able to seize the key from him by force even if he gets hurt in the process (within some limits). In the end he will probably be able to argue that he does no longer have the key, and they will not be able to proof he still has. But _at the moment_ this is not whats being argued about. (Not saying I find anything about that right or just or moral, but I do not find it completely without reason)

1_2__4 9y ago
The fact that he possesses no physical key is the crux of the matter. Any metaphor that tries to use objects like keys is pointless - there would be no controversy if there was a physical key.
- jo909 9y ago
  Well there are plenty of safes without physical keys that use pin-pads. To to bring that analogy a little closer to reality then, they are trying to force him to enter the pin into the safe. And again the current argument is not about whether he knows the pin or not, just whether he can refuse to enter it by arguing that this would be "being witness against himself", i.e. protected by the fifth.
- eru 9y ago
  A physical key is equivalent to its shape. So if you have a picture of the key, or just memorise its shape, you can throw away the physical copy.
Clubber 9y ago
I think a more apt analogy is a cyphered letter. Instead of anything physical like turning a key, the judge is compelling him to decipher the letter.
- jo909 9y ago
  This is a reasonable analogy too, but that does not help (me at least) to understand the position of the judge and prosecution. Deciphering the letter would mean he writes down the cleartext version, or reads it out aloud or something like that, which could much more obviously be argued as "being witness against himself". Their position is that this is exactly NOT what they are trying to force him to do, so the fifth does not apply.
  - Clubber 9y ago
    I agree. When we think of it as a cyphered letter, it is more clear to me that the government is compelling him to incriminate himself. So instead of collecting evidence, they are forcing him to provide evidence, which to me is a clear 5th amendment violation. When we use the safe analogy, well safes are easy to open, no big deal. The government opens them all the time. Why is that such a huge leap? Using the incorrect analogy muddies the real issue here IMO.
    - rayiner 9y ago
      Your analogy fails for a couple of reasons: 1) Giving up the decryption key is clearly not analogous to deciphering the letter. When you decrypt a drive, it’s the computer does the actual deciphering operation. 2) Focusing on how easy the safe is to break without the key cuts against your position. We can jail people for not providing the key to a regular safe, even though the cops could break into it. But we can’t jail people for not providing the key to an encrypted drive, even though the cops likely have no other way to get the evidence they know is in there. Isn’t that precisely backward? Shouldn’t the cops have more power in the situation where they have no alternatives?
      - Clubber 9y ago
        >Giving up the decryption key is clearly not analogous to deciphering the letter. When you decrypt a drive, it’s the computer does the actual deciphering operation. The computer cannot decipher the drive without the decryption key. The computer doing it is just automation. Using that logic killing someone with a car isn't the person's fault since the car did the actual killing. It's about who is controlling the thing, not the actual thing itself. >We can jail people for not providing the key to a regular safe, even though the cops could break into it. That is true with physical keys, but not combinations. It doesn't matter to police whether a suspect provides a key or not because the cops can work around that. In the case of encryption, they cannot. A cypher is a combination more so than a key. Here is an article on revealing a combination of a safe vs. a key. In it, judges agree that revealing a combination delves into the mind while a physical key does not. A distinct difference when dealing with self incrimination. Collecting evidence from the mind (a combination) is self incrimination. http://blogs.denverpost.com/crime/2012/01/05/why-criminals-should-always-use-combination-safes/3343/ http://blogs.denverpost.com/crime/2012/01/05/why-criminals-s... >Shouldn’t the cops have more power in the situation where they have no alternatives? Perhaps in a dictatorship.
LanceH 9y ago
>> 3. They know there is evidence inside the safe "know" implies a fact. The determination of fact is up to the jury.
- jo909 9y ago
  Well I state it like a fact because that is not part of the current argument. In this case the judge made that determination, and challenging that is a whole other argument where a jury might or might not come into play.

by jo909 9y ago

1_2__4 9y ago

The fact that he possesses no physical key is the crux of the matter. Any metaphor that tries to use objects like keys is pointless - there would be no controversy if there was a physical key.

jo909 9y ago
Well there are plenty of safes without physical keys that use pin-pads. To to bring that analogy a little closer to reality then, they are trying to force him to enter the pin into the safe. And again the current argument is not about whether he knows the pin or not, just whether he can refuse to enter it by arguing that this would be "being witness against himself", i.e. protected by the fifth.
eru 9y ago
A physical key is equivalent to its shape. So if you have a picture of the key, or just memorise its shape, you can throw away the physical copy.

Clubber 9y ago

I think a more apt analogy is a cyphered letter. Instead of anything physical like turning a key, the judge is compelling him to decipher the letter.

jo909 9y ago
This is a reasonable analogy too, but that does not help (me at least) to understand the position of the judge and prosecution. Deciphering the letter would mean he writes down the cleartext version, or reads it out aloud or something like that, which could much more obviously be argued as "being witness against himself". Their position is that this is exactly NOT what they are trying to force him to do, so the fifth does not apply.
- Clubber 9y ago
  I agree. When we think of it as a cyphered letter, it is more clear to me that the government is compelling him to incriminate himself. So instead of collecting evidence, they are forcing him to provide evidence, which to me is a clear 5th amendment violation. When we use the safe analogy, well safes are easy to open, no big deal. The government opens them all the time. Why is that such a huge leap? Using the incorrect analogy muddies the real issue here IMO.
  - rayiner 9y ago
    Your analogy fails for a couple of reasons: 1) Giving up the decryption key is clearly not analogous to deciphering the letter. When you decrypt a drive, it’s the computer does the actual deciphering operation. 2) Focusing on how easy the safe is to break without the key cuts against your position. We can jail people for not providing the key to a regular safe, even though the cops could break into it. But we can’t jail people for not providing the key to an encrypted drive, even though the cops likely have no other way to get the evidence they know is in there. Isn’t that precisely backward? Shouldn’t the cops have more power in the situation where they have no alternatives?
    - Clubber 9y ago
      >Giving up the decryption key is clearly not analogous to deciphering the letter. When you decrypt a drive, it’s the computer does the actual deciphering operation. The computer cannot decipher the drive without the decryption key. The computer doing it is just automation. Using that logic killing someone with a car isn't the person's fault since the car did the actual killing. It's about who is controlling the thing, not the actual thing itself. >We can jail people for not providing the key to a regular safe, even though the cops could break into it. That is true with physical keys, but not combinations. It doesn't matter to police whether a suspect provides a key or not because the cops can work around that. In the case of encryption, they cannot. A cypher is a combination more so than a key. Here is an article on revealing a combination of a safe vs. a key. In it, judges agree that revealing a combination delves into the mind while a physical key does not. A distinct difference when dealing with self incrimination. Collecting evidence from the mind (a combination) is self incrimination. http://blogs.denverpost.com/crime/2012/01/05/why-criminals-should-always-use-combination-safes/3343/ http://blogs.denverpost.com/crime/2012/01/05/why-criminals-s... >Shouldn’t the cops have more power in the situation where they have no alternatives? Perhaps in a dictatorship.

LanceH 9y ago

>> 3. They know there is evidence inside the safe "know" implies a fact. The determination of fact is up to the jury.

jo909 9y ago
Well I state it like a fact because that is not part of the current argument. In this case the judge made that determination, and challenging that is a whole other argument where a jury might or might not come into play.