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The issue arises when the knowledge of the password itself is incriminating. The 5th amendment prohibits forced self incrimination. Forcing a suspect to divulg

The issue arises when the knowledge of the password itself is incriminating. The 5th amendment prohibits forced self incrimination. Forcing a suspect to divulge information that is directly incriminating will not stand constitutional review, regardless of the nature of the information. You have the right to remain silent.

nerdponx 8y ago
What if they have a warrant? At that point I would argue that you are not self-incriminating. In my mind, it's like if the police had a warrant to search your apartment and you didn't let them in.
- umvi 8y ago
  More like: Police: "We have a warrant for your apartment, let us in" Suspect: "Sorry, I lost the key when I went hiking in the Rocky Mountains, there's no way in. Oh, and be aware that if you try to force your way in more than 5 times, the apartment will catch fire and destroy everything inside" What would happen in this case? Can the suspect be held in contempt?
  - jdc 8y ago
    Probably obstruction of justice IMHO
    - int_19h 8y ago
      Doesn't that require intent and planning? If the arrangements were in place before the crime was even planned, how can it be obstruction?
      - nerdponx 8y ago
        It's obstruction if they didn't actually lose the key, or the deliberately "lost" the key.
  - dmitrygr 8y ago
    That is a degenerate argument. an apartment is clearly yours. Without your password there is no way to conclusively prove that a phone is yours. SIM cards can be swapped, for example. The incriminating is not stating the password. it is the fact that you are proving the phone as yours.
    - swiftcoder 8y ago
      Phone's have serial numbers tied to the hardware. It's certainly possible to prove that a given phone is the same physical unit that one purchased.
      - dmitrygr 8y ago
        Which does not in any way prove that it is yours. Over my lifetime I purchased over 30 phones. Only two of them are currently mine. If you were to place another one I have purchased, but long ago sold in my possession, that would not be enough to prove that it is currently mine. if I happen to know the password, that might be very convincing.
darkpuma 8y ago
Mugshot photographs are constitutional, no? Suppose the face biometrics were poorly implemented, such that holding a printout of the mugshot were sufficient to defeat the facial recognition. Would doing that violate the 5th amendment? What if the face biometrics are better than that, but they can still be defeated by a very carefully constructed 3d model of the suspects head, created from data taken from numerous mugshots taken from many angles? Or what if a suspects fingerprint was taken without his consent by the police, and compared against a fingerprint taken from the murder weapon? Is that self incrimination? I'm not seeing the "self incrimination" angle for face or fingerprint scans here. For classical passwords yes, but not for biometrics.
- Nasrudith 8y ago
  The issue is more related to the intent of the action regardless of the practicalities of it. Essentially the subjecting giving a password is giving their consent to the device to unlock it. Using their iris or facial pattern as something compelled in that context would be distinct from the gunshot residue or blood of a victim which also incriminates them since that is something about them as opposed to being compelled to testify against themselves. It is admittedly a weaker argument from a pure physical standpoint but the law doesn't operate based upon that anyway. Any judge would throw out a request in discovery for the defendant to produce a recording confessing their guilt even for legitimate comparative purposes and many other requests or demands that would be unduly prejudicial for 5th amendment reasons.
  - darkpuma 8y ago
    I'm just not seeing a meaningful distinction between forcibly taking their fingerprint ("something about them") to check against prints found on a gun and forcibly taking their fingerprint ("something about them") to check a smartphone found on the scene. If they have a warrant to check the phone, and if taking fingerprints of the arrested without consent has already been found constitutional, I just don't see a problem.
    - rocqua 8y ago
tzs 8y ago
That could work if knowledge of the password itself is all they are trying to pin on you. Usually, though, they are going to be after what the password is protecting. If you try to invoke the 5th claiming that admitting knowledge of the password itself would be incriminating, prosecutors can grant you immunity over that and that greatly reduces your 5th Amendment protections with regard to that particular subject.
IgorPartola 8y ago
If your password is “I killed him and the body is hidden under my deck” and that’s the literal crime you are being charged with, sure. But your password is usually not an admission of a crime, so that’s not the argument. Even if your encrypted laptop contains evidence, you cannot plead the fifth if the prosecutors know it’s there. As long as they can get a warrant and when they get the data say “see your honor? Here is the evidence we knew was there!”, it doesn’t fall under the fifth. Self incrimination would be if you are charged with tax fraud and proof is on your encrypted drive and the prosecution knows this, but also on that drive is records of money laundering, a separate crime they do not know about. This is when pleading the fifth would apply. By decrypting the laptop, you would incriminate yourself in a second crime, that you were not being charged with. Presumably if you were coerced into decrypting the laptop in this case, you could use the argument that the money laundering evidence can not be admitted into court because it was obtained inappropriately. IANAL and this ain’t legal advice. Stay in school kids.
- sathackr 8y ago
  Not quite. It depends on what you are charged with. In a case of say, possession of stolen information, the laws of possession applied to contraband such as drugs would likely apply. Since the information wouldn't be in your actual possession(literally in your hands or on your person), then they would fall under constructive possession laws. In most states, constructive possession has 3 parts -- 1) You must have knowledge of the presence of the contraband 2) You must know of the contraband's illicit nature 3) You must have the ability to exercise dominion and control over the contraband. If I slip an encrypted thumb drive full of stolen trade secrets into your suitcase at the airport, you're not automatically in possession of those things because, absent any other information, none of the rules above could be satisfied. But, if you knew the encryption key to the thumb drive, then that is evidence against you and that knowledge would be protected under the 5th amendment. If police find a random iPhone in your house that you share with a roommate, they would have to prove constructive possession to tie anything found on that device to you. Knowledge of the password, regardless of what the password is, would be protected under the 5th amendment. In both cases, the authorities could not compel you to incriminate yourself by forcing you to disclose your knowledge of the password to the device. IANAL either. If you are ever in such a situation, be prepared to sit in prison for 10 years while you work your way through the appellate courts, because you're in for a long battle.

nerdponx 8y ago

What if they have a warrant? At that point I would argue that you are not self-incriminating. In my mind, it's like if the police had a warrant to search your apartment and you didn't let them in.

umvi 8y ago
More like: Police: "We have a warrant for your apartment, let us in" Suspect: "Sorry, I lost the key when I went hiking in the Rocky Mountains, there's no way in. Oh, and be aware that if you try to force your way in more than 5 times, the apartment will catch fire and destroy everything inside" What would happen in this case? Can the suspect be held in contempt?
- jdc 8y ago
  Probably obstruction of justice IMHO
  - int_19h 8y ago
    Doesn't that require intent and planning? If the arrangements were in place before the crime was even planned, how can it be obstruction?
    - nerdponx 8y ago
      It's obstruction if they didn't actually lose the key, or the deliberately "lost" the key.
- dmitrygr 8y ago
  That is a degenerate argument. an apartment is clearly yours. Without your password there is no way to conclusively prove that a phone is yours. SIM cards can be swapped, for example. The incriminating is not stating the password. it is the fact that you are proving the phone as yours.
  - swiftcoder 8y ago
    Phone's have serial numbers tied to the hardware. It's certainly possible to prove that a given phone is the same physical unit that one purchased.
    - dmitrygr 8y ago
      Which does not in any way prove that it is yours. Over my lifetime I purchased over 30 phones. Only two of them are currently mine. If you were to place another one I have purchased, but long ago sold in my possession, that would not be enough to prove that it is currently mine. if I happen to know the password, that might be very convincing.

darkpuma 8y ago

Mugshot photographs are constitutional, no? Suppose the face biometrics were poorly implemented, such that holding a printout of the mugshot were sufficient to defeat the facial recognition. Would doing that violate the 5th amendment? What if the face biometrics are better than that, but they can still be defeated by a very carefully constructed 3d model of the suspects head, created from data taken from numerous mugshots taken from many angles? Or what if a suspects fingerprint was taken without his consent by the police, and compared against a fingerprint taken from the murder weapon? Is that self incrimination? I'm not seeing the "self incrimination" angle for face or fingerprint scans here. For classical passwords yes, but not for biometrics.

Nasrudith 8y ago
The issue is more related to the intent of the action regardless of the practicalities of it. Essentially the subjecting giving a password is giving their consent to the device to unlock it. Using their iris or facial pattern as something compelled in that context would be distinct from the gunshot residue or blood of a victim which also incriminates them since that is something about them as opposed to being compelled to testify against themselves. It is admittedly a weaker argument from a pure physical standpoint but the law doesn't operate based upon that anyway. Any judge would throw out a request in discovery for the defendant to produce a recording confessing their guilt even for legitimate comparative purposes and many other requests or demands that would be unduly prejudicial for 5th amendment reasons.
- darkpuma 8y ago
  I'm just not seeing a meaningful distinction between forcibly taking their fingerprint ("something about them") to check against prints found on a gun and forcibly taking their fingerprint ("something about them") to check a smartphone found on the scene. If they have a warrant to check the phone, and if taking fingerprints of the arrested without consent has already been found constitutional, I just don't see a problem.
  - rocqua 8y ago

tzs 8y ago

That could work if knowledge of the password itself is all they are trying to pin on you. Usually, though, they are going to be after what the password is protecting. If you try to invoke the 5th claiming that admitting knowledge of the password itself would be incriminating, prosecutors can grant you immunity over that and that greatly reduces your 5th Amendment protections with regard to that particular subject.

IgorPartola 8y ago

If your password is “I killed him and the body is hidden under my deck” and that’s the literal crime you are being charged with, sure. But your password is usually not an admission of a crime, so that’s not the argument. Even if your encrypted laptop contains evidence, you cannot plead the fifth if the prosecutors know it’s there. As long as they can get a warrant and when they get the data say “see your honor? Here is the evidence we knew was there!”, it doesn’t fall under the fifth. Self incrimination would be if you are charged with tax fraud and proof is on your encrypted drive and the prosecution knows this, but also on that drive is records of money laundering, a separate crime they do not know about. This is when pleading the fifth would apply. By decrypting the laptop, you would incriminate yourself in a second crime, that you were not being charged with. Presumably if you were coerced into decrypting the laptop in this case, you could use the argument that the money laundering evidence can not be admitted into court because it was obtained inappropriately. IANAL and this ain’t legal advice. Stay in school kids.

sathackr 8y ago
Not quite. It depends on what you are charged with. In a case of say, possession of stolen information, the laws of possession applied to contraband such as drugs would likely apply. Since the information wouldn't be in your actual possession(literally in your hands or on your person), then they would fall under constructive possession laws. In most states, constructive possession has 3 parts -- 1) You must have knowledge of the presence of the contraband 2) You must know of the contraband's illicit nature 3) You must have the ability to exercise dominion and control over the contraband. If I slip an encrypted thumb drive full of stolen trade secrets into your suitcase at the airport, you're not automatically in possession of those things because, absent any other information, none of the rules above could be satisfied. But, if you knew the encryption key to the thumb drive, then that is evidence against you and that knowledge would be protected under the 5th amendment. If police find a random iPhone in your house that you share with a roommate, they would have to prove constructive possession to tie anything found on that device to you. Knowledge of the password, regardless of what the password is, would be protected under the 5th amendment. In both cases, the authorities could not compel you to incriminate yourself by forcing you to disclose your knowledge of the password to the device. IANAL either. If you are ever in such a situation, be prepared to sit in prison for 10 years while you work your way through the appellate courts, because you're in for a long battle.