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But a password isn't evidence, it's testimony. The Supreme Court has held that you don't need to turn over "contents of the mind". The example of Wikipedia uses

But a password isn't evidence, it's testimony. The Supreme Court has held that you don't need to turn over "contents of the mind". The example of Wikipedia uses a bank password as an example [1]. In fact even the act of turning over the password demonstrates that the defendant had control of the device and could easily be argued to be self-incriminating. Also, think about the implications of this. What if the person being ordered to hand over the password says "I forgot"? How do we know if they have genuinely forgotten the password? 1. https://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution#Combinations_and_passwords https://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_...

rayiner 7y ago
It may or may not be testimony. The Wikipedia example you’re referencing turns on the fact that knowing the password to the account proves ownership or control of the account, which itself may be a fact relevant to the charges. For example, if the account is connected to know money laundering. Turning over the password to a phone may or may not reveal similar information. If the phone was found at a drug stash house, knowledge of the password reveals a connection to the crime. If it’s just your phone, and there is no doubt it’s your phone, knowledge of the password doesn’t in and of itself reveal anything. Testimony is stuff you’d tell a jury. In the bank account example, you’d tell the jury: this account was used by the criminal, and the accused knew the password, it must be his account. You wouldn’t tell the jury “the accused knew the password to what was undisputedly his own phone.”
tlb 7y ago
The same thing that happens when you make any excuse for not complying with a court order: a judge or jury decides whether or not they believe you. There is occasionally a gray area, but most of the time lies are obvious. If you attend a trial, you'll hear a lot of things you either do or don't believe, and not many will be gray. If an otherwise normal person claims to have forgotten the passcode to their phone that they used every day, few judges would buy it.
diafygi 7y ago
> What if the person being ordered to hand over the password says "I forgot"? How do we know if they have genuinely forgotten the password? I'm curious what case law there is there for this situation. I change my passwords fairly frequently using a password generator, so if I don't use the password regularly, I forget it quickly. If someone brought me an old laptop of mine, it's more likely than not I genuinely wouldn't remember the password for it. Also, there's the situation where someone isn't sure if the order to give their password is legal, so a court battle ensues for a year, but then even if they lose at the Supreme Court, what if in that year they forgot their password simply because they hadn't used it in so long?

rayiner 7y ago

It may or may not be testimony. The Wikipedia example you’re referencing turns on the fact that knowing the password to the account proves ownership or control of the account, which itself may be a fact relevant to the charges. For example, if the account is connected to know money laundering. Turning over the password to a phone may or may not reveal similar information. If the phone was found at a drug stash house, knowledge of the password reveals a connection to the crime. If it’s just your phone, and there is no doubt it’s your phone, knowledge of the password doesn’t in and of itself reveal anything. Testimony is stuff you’d tell a jury. In the bank account example, you’d tell the jury: this account was used by the criminal, and the accused knew the password, it must be his account. You wouldn’t tell the jury “the accused knew the password to what was undisputedly his own phone.”

tlb 7y ago

The same thing that happens when you make any excuse for not complying with a court order: a judge or jury decides whether or not they believe you. There is occasionally a gray area, but most of the time lies are obvious. If you attend a trial, you'll hear a lot of things you either do or don't believe, and not many will be gray. If an otherwise normal person claims to have forgotten the passcode to their phone that they used every day, few judges would buy it.

diafygi 7y ago

> What if the person being ordered to hand over the password says "I forgot"? How do we know if they have genuinely forgotten the password? I'm curious what case law there is there for this situation. I change my passwords fairly frequently using a password generator, so if I don't use the password regularly, I forget it quickly. If someone brought me an old laptop of mine, it's more likely than not I genuinely wouldn't remember the password for it. Also, there's the situation where someone isn't sure if the order to give their password is legal, so a court battle ensues for a year, but then even if they lose at the Supreme Court, what if in that year they forgot their password simply because they hadn't used it in so long?