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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 me

by 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.
    - sjy 9y ago
      That article relies on Doe v. United States, 487 U.S. 201 (1988)[1], in which the Supreme Court found that a suspect could be compelled to sign a form authorizing banks to disclose records of any accounts over which he had a right of withdrawal, because 'neither the form nor its execution communicates any factual assertions, implicit or explicit, or conveys any information to the Government.' Applying that decision, a federal circuit court has already decided that the Fifth Amendment rights of the suspect in this case have not been infringed: United States v. Apple Mac Pro Computer, 851 F.3d 238 (2017)[2]. So, while the question is currently the subject of a petition to the Supreme Court, it is not accurate to say that judges agree that revealing a combination, or decrypting an encrypted volume, 'delves into the mind' so that compelling someone to do so would violate the Fifth Amendment. [1] https://www.law.cornell.edu/supremecourt/text/487/201 https://www.law.cornell.edu/supremecourt/text/487/201 [2] http://caselaw.findlaw.com/us-3rd-circuit/1853477.html http://caselaw.findlaw.com/us-3rd-circuit/1853477.html
      - Clubber 9y ago
        No, I meant judges in this particular case, not all judges. This is the key part. We do not disagree with the dissent that “[t]he expression of the contents of an individual’s mind” is testimonial communication for purposes of the Fifth Amendment. … We simply disagree with the dissent’s conclusion that the execution of the consent directive at issue here forced petitioner to express the contents of his mind. In our view, such compulsion is more like “be[ing] forced to surrender a key to a strongbox containing incriminating documents” than it is like “be[ing] compelled to reveal the combination to [petitioner’s] wall safe.” Being compelled to reveal the combination to a wall safe they consider a violation of the 5th amendment. Revealing the combination to a wall safe is much more like revealing a password than surrendering a key.
        sjy 9y ago
        That's a fair point, and the last sentence of my previous reply should be qualified: compelling someone to reveal the combination to a wall safe is not necessarily a violation of the Fifth Amendment. In this case, the court decided that the 'foregone conclusion' exception in Fisher v. United States, 425 U.S. 391 (1976)[1] applies. In Fisher, the court acknowledged that producing documents in response to a subpoena can be testimonial, because it 'tacitly concedes the existence [and possession] of the papers demanded.' But when the existence of the location of the documents are a foregone conclusion, the testimonial aspect of the production of documents – the tacit concession as to their existence – adds 'little or nothing to the sum total of the Government's information.' As you suggested, compulsory key disclosure can be a violation of the Fifth Amendment, and here the court referred to an example of that in In re Grand Jury Subpoena Duces Tecum Dated Mar. 25, 2011, 670 F.3d 1335 (2012)[2]. The difference was that in In re Grand Jury Subpoena, there was no evidence that the TrueCrypt volumes contained any data, and no evidence that the suspect could actually decrypt them. [1]: https://supreme.justia.com/cases/federal/us/425/391/case.html https://supreme.justia.com/cases/federal/us/425/391/case.htm... [2]: https://scholar.google.com.au/scholar_case?case=201586737907154112 https://scholar.google.com.au/scholar_case?case=201586737907...
- harryh 9y ago
  Forcing someone to provide evidence is not a 5th amendment violation. Law enforcement can require that a person hand over all sorts of evidence: documents, physical artifacts, even a person's own blood.
  - Clubber 9y ago
    Sorry, provide evidence from his mind was probably a better way of saying that.
    - harryh 9y ago
      Lots of evidence can come from your mind. The location of a document, the passcode on a safe. What makes these things similar to an encryption key and different from other types of testimony is that they only unlock information that already exists outside of the witnesses's head so they aren't subject to the same prohibitions under the 5th amendment.
      - Clubber 9y ago
        The compelling of revealing a safe's combination is protected in prior cases (I liked on earlier in this thread but I'll quote it again) We do not disagree with the dissent that “[t]he expression of the contents of an individual’s mind” is testimonial communication for purposes of the Fifth Amendment. … We simply disagree with the dissent’s conclusion that the execution of the consent directive at issue here forced petitioner to express the contents of his mind. In our view, such compulsion is more like “be[ing] forced to surrender a key to a strongbox containing incriminating documents” than it is like “be[ing] compelled to reveal the combination to [petitioner’s] wall safe.” Of course, the Supreme Court hasn't ruled on it as far as I know, but it's an interesting case. I'd like the SCOTUS to rule on it.

by jo909 9y ago

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.
  - sjy 9y ago
    That article relies on Doe v. United States, 487 U.S. 201 (1988)[1], in which the Supreme Court found that a suspect could be compelled to sign a form authorizing banks to disclose records of any accounts over which he had a right of withdrawal, because 'neither the form nor its execution communicates any factual assertions, implicit or explicit, or conveys any information to the Government.' Applying that decision, a federal circuit court has already decided that the Fifth Amendment rights of the suspect in this case have not been infringed: United States v. Apple Mac Pro Computer, 851 F.3d 238 (2017)[2]. So, while the question is currently the subject of a petition to the Supreme Court, it is not accurate to say that judges agree that revealing a combination, or decrypting an encrypted volume, 'delves into the mind' so that compelling someone to do so would violate the Fifth Amendment. [1] https://www.law.cornell.edu/supremecourt/text/487/201 https://www.law.cornell.edu/supremecourt/text/487/201 [2] http://caselaw.findlaw.com/us-3rd-circuit/1853477.html http://caselaw.findlaw.com/us-3rd-circuit/1853477.html
    - Clubber 9y ago
      No, I meant judges in this particular case, not all judges. This is the key part. We do not disagree with the dissent that “[t]he expression of the contents of an individual’s mind” is testimonial communication for purposes of the Fifth Amendment. … We simply disagree with the dissent’s conclusion that the execution of the consent directive at issue here forced petitioner to express the contents of his mind. In our view, such compulsion is more like “be[ing] forced to surrender a key to a strongbox containing incriminating documents” than it is like “be[ing] compelled to reveal the combination to [petitioner’s] wall safe.” Being compelled to reveal the combination to a wall safe they consider a violation of the 5th amendment. Revealing the combination to a wall safe is much more like revealing a password than surrendering a key.
      - sjy 9y ago
        That's a fair point, and the last sentence of my previous reply should be qualified: compelling someone to reveal the combination to a wall safe is not necessarily a violation of the Fifth Amendment. In this case, the court decided that the 'foregone conclusion' exception in Fisher v. United States, 425 U.S. 391 (1976)[1] applies. In Fisher, the court acknowledged that producing documents in response to a subpoena can be testimonial, because it 'tacitly concedes the existence [and possession] of the papers demanded.' But when the existence of the location of the documents are a foregone conclusion, the testimonial aspect of the production of documents – the tacit concession as to their existence – adds 'little or nothing to the sum total of the Government's information.' As you suggested, compulsory key disclosure can be a violation of the Fifth Amendment, and here the court referred to an example of that in In re Grand Jury Subpoena Duces Tecum Dated Mar. 25, 2011, 670 F.3d 1335 (2012)[2]. The difference was that in In re Grand Jury Subpoena, there was no evidence that the TrueCrypt volumes contained any data, and no evidence that the suspect could actually decrypt them. [1]: https://supreme.justia.com/cases/federal/us/425/391/case.html https://supreme.justia.com/cases/federal/us/425/391/case.htm... [2]: https://scholar.google.com.au/scholar_case?case=201586737907154112 https://scholar.google.com.au/scholar_case?case=201586737907...
harryh 9y ago
Forcing someone to provide evidence is not a 5th amendment violation. Law enforcement can require that a person hand over all sorts of evidence: documents, physical artifacts, even a person's own blood.
- Clubber 9y ago
  Sorry, provide evidence from his mind was probably a better way of saying that.
  - harryh 9y ago
    Lots of evidence can come from your mind. The location of a document, the passcode on a safe. What makes these things similar to an encryption key and different from other types of testimony is that they only unlock information that already exists outside of the witnesses's head so they aren't subject to the same prohibitions under the 5th amendment.
    - Clubber 9y ago
      The compelling of revealing a safe's combination is protected in prior cases (I liked on earlier in this thread but I'll quote it again) We do not disagree with the dissent that “[t]he expression of the contents of an individual’s mind” is testimonial communication for purposes of the Fifth Amendment. … We simply disagree with the dissent’s conclusion that the execution of the consent directive at issue here forced petitioner to express the contents of his mind. In our view, such compulsion is more like “be[ing] forced to surrender a key to a strongbox containing incriminating documents” than it is like “be[ing] compelled to reveal the combination to [petitioner’s] wall safe.” Of course, the Supreme Court hasn't ruled on it as far as I know, but it's an interesting case. I'd like the SCOTUS to rule on it.