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I think, at some point it gets to the Supreme court which will decide whether it's covered by the 5th amendment or not.

by solomatov 9y ago

blunte 9y ago
Sucks to be in jail waiting for that process to play out, though. *edit typo!
driverdan 9y ago
It's likely Rawls' case will make it to the Supreme Court. Let's hope it's sooner rather than later.
19guid 9y ago
The answer is probably no. Requiring a person to unlock a device is not prohibited by the Fifth Amendment simply because the device contains incriminating information that would otherwise be inaccessible to police. If the police have a valid warrant to search your safe, you are generally required to unlock it for them, even if the safe contains evidence that incriminates you. If you are issued a valid subpoena to produce certain documents in your possession, you are generally required to produce those documents, even if they incriminate you. Compelled decryption of hard drives is fundamentally no different. It is true that the act of unlocking the safe or producing those documents is itself testimonial in the sense that you are conveying the fact that you know the combination or possess those documents. But under the "foregone conclusion" doctrine, if the state already knows that implicit testimony, then it is not protected by the Fifth Amendment. It's obvious that Rawls knows the password to the drives. There are legitimate concerns about how search warrants should apply to electronic devices. However, these are Fourth Amendment issues, not Fifth Amendment ones. If you're interested, Orin Kerr from the Volokh Conspiracy has written several articles about compelled decryption, including with respect to this particular case [1, 2, 3]. 1: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/06/07/the-fifth-amendment-limits-on-forced-decryption-and-applying-the-foregone-conclusion-doctrine/ https://www.washingtonpost.com/news/volokh-conspiracy/wp/201... 2: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/09/09/thoughts-on-the-third-circuits-decryption-and-self-incrimination-oral-argument/ https://www.washingtonpost.com/news/volokh-conspiracy/wp/201... 3: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/03/20/third-circuit-doesnt-resolve-standard-for-forced-decryption-under-the-fifth-amendment/ https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...
- RSchaeffer 9y ago
  Thanks for sharing Kerr's articles! I wasn't familiar with this issue, so I read them, and in my opinion, I think he's dead wrong (and the 3rd Circuit ruling). The argument that by disclosing his password, Doe is only admitting, "I know the password," which is a forgone conclusion, is nonsense. That statement necessarily carries with it a number of additional statements, including "Very few other people (if any) also have this password" by virtue of what a password is, and "I have read/write access to this hard drive," which when coupled with the previous statement, leads to the conclusion "I wrote the material on this hard drive to this hard drive." Kerr's argument is basically "Doe is only admitting to the premise" while ignoring that an entire chain of reasoning necessarily follows from the premise.
  - siler 9y ago
    With a safe, as with any encrypted document, there are a finite number of keys. I think that invalidates the idea of possession of the password being important, at least from a "purely lawful" point of view. Read/write access is basically physical access. Anyone with enough resources could accomplish physical access. It's possible I'm being paranoid, but it seems like most of law is based on series of assumptions. It isn't a purely logical idea, which is why we have so much fun arguing about it. It is fundamentally the hope of writing down logic in a language that doesn't, unambiguously, contain it.
- jsjohnst 9y ago
  I think the safe analogy is an excellent way to illustrate the issue. Encrypting a file is essentially the same thing as locking it in a safe in what I believe is the ultimate "eyes of the law" once this gets fully tried.
  - michaelmrose 9y ago
    Encryption is nothing like locking in a safe further in a similar situation I'm pretty sure rather than going to court they just open the safe making the example even more useless.

I think, at some point it gets to the Supreme court which will decide whether it's covered by the 5th amendment or not.

blunte 9y ago

Sucks to be in jail waiting for that process to play out, though. *edit typo!

driverdan 9y ago

It's likely Rawls' case will make it to the Supreme Court. Let's hope it's sooner rather than later.

19guid 9y ago

The answer is probably no. Requiring a person to unlock a device is not prohibited by the Fifth Amendment simply because the device contains incriminating information that would otherwise be inaccessible to police. If the police have a valid warrant to search your safe, you are generally required to unlock it for them, even if the safe contains evidence that incriminates you. If you are issued a valid subpoena to produce certain documents in your possession, you are generally required to produce those documents, even if they incriminate you. Compelled decryption of hard drives is fundamentally no different. It is true that the act of unlocking the safe or producing those documents is itself testimonial in the sense that you are conveying the fact that you know the combination or possess those documents. But under the "foregone conclusion" doctrine, if the state already knows that implicit testimony, then it is not protected by the Fifth Amendment. It's obvious that Rawls knows the password to the drives. There are legitimate concerns about how search warrants should apply to electronic devices. However, these are Fourth Amendment issues, not Fifth Amendment ones. If you're interested, Orin Kerr from the Volokh Conspiracy has written several articles about compelled decryption, including with respect to this particular case [1, 2, 3]. 1: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/06/07/the-fifth-amendment-limits-on-forced-decryption-and-applying-the-foregone-conclusion-doctrine/ https://www.washingtonpost.com/news/volokh-conspiracy/wp/201... 2: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/09/09/thoughts-on-the-third-circuits-decryption-and-self-incrimination-oral-argument/ https://www.washingtonpost.com/news/volokh-conspiracy/wp/201... 3: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/03/20/third-circuit-doesnt-resolve-standard-for-forced-decryption-under-the-fifth-amendment/ https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...

RSchaeffer 9y ago
Thanks for sharing Kerr's articles! I wasn't familiar with this issue, so I read them, and in my opinion, I think he's dead wrong (and the 3rd Circuit ruling). The argument that by disclosing his password, Doe is only admitting, "I know the password," which is a forgone conclusion, is nonsense. That statement necessarily carries with it a number of additional statements, including "Very few other people (if any) also have this password" by virtue of what a password is, and "I have read/write access to this hard drive," which when coupled with the previous statement, leads to the conclusion "I wrote the material on this hard drive to this hard drive." Kerr's argument is basically "Doe is only admitting to the premise" while ignoring that an entire chain of reasoning necessarily follows from the premise.
- siler 9y ago
  With a safe, as with any encrypted document, there are a finite number of keys. I think that invalidates the idea of possession of the password being important, at least from a "purely lawful" point of view. Read/write access is basically physical access. Anyone with enough resources could accomplish physical access. It's possible I'm being paranoid, but it seems like most of law is based on series of assumptions. It isn't a purely logical idea, which is why we have so much fun arguing about it. It is fundamentally the hope of writing down logic in a language that doesn't, unambiguously, contain it.
jsjohnst 9y ago
I think the safe analogy is an excellent way to illustrate the issue. Encrypting a file is essentially the same thing as locking it in a safe in what I believe is the ultimate "eyes of the law" once this gets fully tried.
- michaelmrose 9y ago
  Encryption is nothing like locking in a safe further in a similar situation I'm pretty sure rather than going to court they just open the safe making the example even more useless.