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The 5th amendment protects against forced testimony, not against compulsion to provide evidence. You can refuse to testify against yourself, you cannot refuse

by evgen 16y ago

The 5th amendment protects against forced testimony, not against compulsion to provide evidence. You can refuse to testify against yourself, you cannot refuse to comply with a valid search warrant.

wjy 16y ago
Testifying is providing information to the court. Decrypting your hard drive is providing information to the court. What's the difference? I would argue that all evidence is really just information. Once again, the old lines dividing one category from another become blurred.
- evgen 16y ago
  The difference is that testimony is revealing the contents of your brain ("I saw X, I did or did not do Y, I felt Z") and evidence is revealing the contents of your car trunk. Evidence does not have its own opinion of what did or did not happen, evidence does not decide what is or is not the truth. Evidence simply exists; it is for others (giving testimony) to give evidence context and relevance.
  - blahblahblah 16y ago
    The password is among the contents of your brain.
    - lurchpop 16y ago
      damn. that's a really good point, but i still think it'd fall under the 4th. A password is closer to providing a key to a locked door rather than testimony. It would be interesting to know if there was ever a hybrid case where there was a password-protected door with a numeric keypad, and someone refused to give the pw. I'd assume in a case like that, however, the cops would just smash shit out of it.
    - Nelson69 16y ago
      It's not the password they want, it's the evidence in side the "safe" that your password protects. You're compelled to provide access. You could probably make a legitimate case for not actually revealing the password if you provided access for them.
jimmyk 16y ago
Perhaps a solution is to commit two crimes: crime A which has to do with the encrypted file, and crime B which has nothing to do with it. Then, use a phrase which is self-incriminating for crime B as the password for the encrypted volume. For example, "IBrokeTheSpeedLimitBy15MilesPerHourOnJuneTheTwenty-Seventh,InTheYearTwoThousandAnd4".
- evgen 16y ago
  In which case the judge would compel you to reveal your password to your attorney. The attorney would not be able to reveal the password as that would violate privilege, but they would be compelled to uphold the terms of the valid search warrant on the decrypted data.
  - jimmyk 16y ago
    Well, suppose that you do give them the unencrypted file. They already have the encrypted file and presumably are aware of the encryption scheme you used, so (this could be totally wrong, as I don't know enough about encryption) they should be able to figure out the encryption key.
    - evgen 16y ago
      Any encryption scheme that is not worthless does not work that way. If you have the plaintext and the ciphertext (but did not get to choose the plaintext to be encrypted) then you are still no closer to getting the key.

by evgen 16y ago

The 5th amendment protects against forced testimony, not against compulsion to provide evidence. You can refuse to testify against yourself, you cannot refuse to comply with a valid search warrant.

wjy 16y ago

Testifying is providing information to the court. Decrypting your hard drive is providing information to the court. What's the difference? I would argue that all evidence is really just information. Once again, the old lines dividing one category from another become blurred.

evgen 16y ago
The difference is that testimony is revealing the contents of your brain ("I saw X, I did or did not do Y, I felt Z") and evidence is revealing the contents of your car trunk. Evidence does not have its own opinion of what did or did not happen, evidence does not decide what is or is not the truth. Evidence simply exists; it is for others (giving testimony) to give evidence context and relevance.
- blahblahblah 16y ago
  The password is among the contents of your brain.
  - lurchpop 16y ago
    damn. that's a really good point, but i still think it'd fall under the 4th. A password is closer to providing a key to a locked door rather than testimony. It would be interesting to know if there was ever a hybrid case where there was a password-protected door with a numeric keypad, and someone refused to give the pw. I'd assume in a case like that, however, the cops would just smash shit out of it.
  - Nelson69 16y ago
    It's not the password they want, it's the evidence in side the "safe" that your password protects. You're compelled to provide access. You could probably make a legitimate case for not actually revealing the password if you provided access for them.

jimmyk 16y ago

Perhaps a solution is to commit two crimes: crime A which has to do with the encrypted file, and crime B which has nothing to do with it. Then, use a phrase which is self-incriminating for crime B as the password for the encrypted volume. For example, "IBrokeTheSpeedLimitBy15MilesPerHourOnJuneTheTwenty-Seventh,InTheYearTwoThousandAnd4".

evgen 16y ago
In which case the judge would compel you to reveal your password to your attorney. The attorney would not be able to reveal the password as that would violate privilege, but they would be compelled to uphold the terms of the valid search warrant on the decrypted data.
- jimmyk 16y ago
  Well, suppose that you do give them the unencrypted file. They already have the encrypted file and presumably are aware of the encryption scheme you used, so (this could be totally wrong, as I don't know enough about encryption) they should be able to figure out the encryption key.
  - evgen 16y ago
    Any encryption scheme that is not worthless does not work that way. If you have the plaintext and the ciphertext (but did not get to choose the plaintext to be encrypted) then you are still no closer to getting the key.