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Indeed, the article doesn't address the question of forgetting. And generally, it over-complicates things. Let's say that you don't know the password, and neve
by mirimir 8y ago
Indeed, the article doesn't address the question of forgetting. And generally, it over-complicates things.
Let's say that you don't know the password, and never did, because it's not your device. If ordered to decrypt, you just say: "I don't know the password." You don't plead the Fifth. Because you simply don't know the password, and the thought of self-incrimination would never occur to you.
Now let's say that it's your device, and that you did know the password, at one time. But maybe only for a few seconds after you set it, and then forgot to write it down. Or maybe you did that intentionally, to nuke a device before resale. Or maybe you have honestly just forgotten it. I have one or two old drives around like that, so hey ;) Anyway, in that situation, you'd just say: "I've forgotten the password."
But now, let's say that it's your device, and that you do in fact know the password. What do you say? If you plead the Fifth, that's basically an admission that you know the password. Because, as I've said, the thought of self-incrimination would have never occurred to you, if you didn't know it. So you don't do that. You just say that you've forgotten it.
There are, I admit, some concerns with that approach. First, you're lying to an agent, and penalties for that can be extremely severe. So it's your call to make. Also, if an agent testifies that you were using the device when swatted, that claim may seem iffy.
But if pleading the Fifth is no longer an option, what are the alternatives? You can at least claim trauma. And if you're old like me, a ministroke.
- pif 8y ago> But if pleading the Fifth is no longer an option, what are the alternatives? Simple: just give the password!
- deleted 8y ago[deleted]
- tertius 8y ago> If you plead the Fifth, that's basically an admission that you know the password. Is this your opinion or from the article?
- ams6110 8y agoRemaining silent is (in the USA) evidence of nothing. The burden of proof is on the prosecution. Actually pleading the fifth, to a specific question, may have different implications. IANAL.
- mirimir 8y agoYes, "[r]emaining silent is (in the USA) evidence of nothing", but only regarding the facts of the case. But it can be evidence of contempt, and that can put you in jail. And because each refusal to answer is an additional act of contempt, there's effectively no limit to jail time. You're stuck in a contempt-of-court loop.
- mirimir 8y agoIt's my own opinion. I mean, isn't it obvious? In what circumstances, where you actually don't know something, would you plead the Fifth? Would you do that, just as a matter of principle, just because they're asking for something that they have no right to ask? That seems like asking for trouble. I do understand the intent of the Fifth Amendment. To protect defendants from incriminating themselves. And, I believe, to forestall the use of torture. But now, regarding passwords and access credentials, the Fifth is becoming unworkable. I mean, that Philly ex-cop is still in jail for contempt. And perhaps he actually has forgotten the password to his Apple storage device.
- turc1656 8y agoFirst, you can't legally take the fifth just because they are asking something they "have no right to ask". You can only legally take the 5th to prevent possible implication. You also only need to worry about the 5th during certain scenarios. Most of the time you can just refuse to speak. But if you've actually been charge and decided to take the stand and start to answer questions, you have waived your fifth amendment right because that would inhibit the cross-examination's questions. "I mean, isn't it obvious?" That's a common misconception about the 5th amendment. In fact the US Supreme Court has said - "One of the Fifth Amendment's basic functions is to protect innocent men who otherwise might be ensnared by ambiguous circumstances." Case in point: Detective: "Do you know the victim?" Suspect: "Yeah, we've crossed paths a few times before - mutual friends" Detective: "Do you like him?" Suspect: "Not especially. He always seemed kind of arrogant." Detective: "Where were you Friday night?" Suspect: "I went out with a few friends to the Irish pub at the corner of 7th" Detective: "That's interesting because his body was found about a mile from there. And the body was located roughly halfway between that pub and your apartment." Oops. Now you're screwed. You've confirmed your knew the person, didn't like them, and was in the area of the murder on the night it occurred. And your language even uses the past tense ("seemed kind of arrogant"). All of this would be used against you.