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> The Fifth Amendment gives witnesses a right not to testify against themselves. Rawls argued that producing a password for the hard drives would amount to an a

> The Fifth Amendment gives witnesses a right not to testify against themselves. Rawls argued that producing a password for the hard drives would amount to an admission that he owned the hard drives. But the 3rd Circuit rejected that argument. It held that the government already had ample evidence that Rawls owned the hard drives and knew the passwords required to decrypt them. So ordering Rawls to decrypt the drives wouldn't give the government any information it didn't already have. Of course, the contents of the hard drive might incriminate Rawls, but the contents of the hard drive are not considered testimony for Fifth Amendment purposes. It sounds like this ruling is more against indefinite detention than a ruling that allows you to invoke the 5th before handing over your passwords. The quoted text above [1] tells me that the courts have thus far not recognized any right to keep your data encrypted against the wishes of law enforcement. Maybe it means they can only lock you up for 18 months, but I don't see how this changes things appreciably. I guess if the crime you're accused of carries a sentence worse than 18 months, it might be worthwhile, but who knows... [1] https://arstechnica.com/tech-policy/2020/02/man-who-refused-to-decrypt-hard-drives-is-free-after-four-years-in-jail/ https://arstechnica.com/tech-policy/2020/02/man-who-refused-...

1000units 7y ago
My most important passphrases are very complicated, and I lose the ability to reproduce them from muscle memory (the only place they exist) after a few days of non-use. How can you prove passphrases are remembered?
- gamblor956 7y ago
  They don't have to prove that you remember the passphrases. They just have to show that the encrypted devices/partitions/whatever were in your custody at the time of encryption. Then you have to (a) show why you weren't the one to encrypt the devices or (b) make a 5th Amendment argument about why you don't have to turn over the encryption key during which time you may be incarcerated. "I forgot" is generally not a valid defense.
  - Forbo 7y ago
    > "I forgot" is generally not a valid defense. The number of times that people invoke "I don't recall" while giving testimony under oath says otherwise.
    - LanceH 7y ago
      When they start applying these standards to politicians, then I'll be ok with it trickling down the people.
      - incompatible 7y ago
        It's really a different situation. The ruling party is basically above the law in the US, thanks to presidential pardons and control of the impeachment process.
        LanceH 7y ago
        Sure. It's a false hypothesis, so it will never happen, and I can consistently say that I'll never be ok with this being applied to the people.
        1000units 7y ago
        You're halfway to an important insight, but your partisanism is blinding.
    - gamblor956 7y ago
      We're talking about two very different things. And for the record, a defendant claiming "they forgot" something within their control is valid circumstantial evidence of guilt or responsibility. When claimed by the police or prosecution witness, it's just as much valid evidence against guilt, and has been used many times to get defendants off. Basically, it's valid circumstantial evidence against the party/side that makes the claim of forgetfulness.
  - solveit 7y ago
    "I encrypted the device but don't have the key" isn't a defense to being compelled to decrypt the device?
thaumasiotes 7y ago
> Rawls argued that producing a password for the hard drives would amount to an admission that he owned the hard drives. But the 3rd Circuit rejected that argument. It held that the government already had ample evidence that Rawls owned the hard drives and knew the passwords required to decrypt them. So ordering Rawls to decrypt the drives wouldn't give the government any information it didn't already have. Of course, the contents of the hard drive might incriminate Rawls, but the contents of the hard drive are not considered testimony for Fifth Amendment purposes. This would seem to imply that if the government has ample evidence that you murdered someone, they can require you to admit to it in court.
- SpicyLemonZest 7y ago
  They can't require you to personally admit to it, but if they know about a notebook where you wrote it they can require you to give up the notebook. (The rule makes more sense if you think about it in terms of financial crimes; it'd be hard to ever prosecute someone for fraud if they didn't have to give up their books.)
  - tsimionescu 7y ago
    The GP's point was that, if the bar for the 5th amendment is that you may be required to provide testify against yourself as long as the government already knows the piece you are required to testify about, it's not clear how that wouldn't apply to you being required to admit your guilt when the government has sufficient evidence that you are guilty. I'd also note that giving the government your books is required by financial laws as a condition do being allowed to do business, it's not testimony or your general obligation of cooperating with an investigation.
    - wahern 7y ago
      Generally speaking, any non-testimonial evidence entered into court must be backed by a witness testifying to the nature, content (e.g. literally reciting the incriminating parts), and origins of the evidence. And that person has to have had a proper relationship to the evidence to do so, which is usually the person with the most direct and close relationship to an item or act. For example, if you want to enter verbal statements into evidence, the best and proper person to testify to them is usually the person who made the statement, not a listener. Another way to look at it is that the only real evidence in court is witness testimony; everything else is just window dressing. Thus we have the Fifth Amendment: "[no person] shall be compelled in any criminal case to be a witness against himself." How does that get turned into a rule that a defendant can't be forced to divulge information outside court? Because to be admissible in court such information would normally require the defendant to be a witness. If it's not admissible then there's no legitimate basis for the state to compel an act. That leads to two corollaries: 1) if the person isn't a defendant, or is given immunity, he would never be required to be a witness against himself (just a witness against someone else), and thus the Fifth Amendment isn't implicated; 2) if the evidence obtained from the information would be admissible without the defendant's testimony, the Fifth Amendment likewise isn't implicated. #2 is the case here. Because the government can already show ownership of the hard drives through other witness testimony (e.g. testimony of a relative, purchase receipts, etc), it would be categorically unnecessary for the defendant to testify in court to the incriminating act of divulging the password. However, if for some reason it later turned out that the government couldn't show ownership independently, then of course the hard drives would be inadmissible; not because of the forced password disclosure, per se, but simply because the defendant himself couldn't be compelled to be a witness to his act of divulging the password--an investigator couldn't testify that the defendant disclosed the password as that would be hearsay.[1] But such a turnaround is rare as a court won't compel disclosure unless it's clear there's ample independent and admissible evidence of ownership. [1] There are lots of exclusions and exceptions to hearsay, especially regarding defendant admissions, but they're disallowed if they would effectively nullify the spirit of the Fifth Amendment if permitted for compelled acts. If you're a strict textualist, as most conservative-leaning people believe themselves to be, then one would presumably be okay with permitting those exceptions, particularly those exceptions which existed at the time of ratification of the Fifth Amendment.
acchow 7y ago
It's complicated - the guy claimed he forgot his password. So what does the law do at that point?
- ship_it 7y ago
  Yes, I'm wondering about the law regulation in such cases too
- Johnny555 7y ago
  That seems like a plausible excuse. Years ago I encrypted an email archive with what I thought was an easy to remember password. But I've forgotten the password. I remember some of the password so I wrote a password cracker to try variants of that, but I still can't get in. If the feds seized my hard drive and wanted me to decrypt that file, can they lock me up until I give up the password even if I really have forgotten it?
  - tedunangst 7y ago
    I suppose the judge will consider such factors as whether the drive is attached to your computer or shows signs of recent use. If your shell history shows you mounting the drive the day before arrest, that wouldn't play well.
    - ClumsyPilot 7y ago
      To lock up people forever for such things is to me unthinkable. There is no established responsibility to remember you password, or keep it safe. Memory failures are not very predictable
      - chii 7y ago
        The law often uses the "reasonable person" as a standard to measure such responsibilities. So would it make sense for a reasonable person to forget a password they typed in only yesterday (and/or perhaps many times before)?
asdfasgasdgasdg 7y ago
Also worth noting that the court appears to only be saying that he can't be locked up because the government likely doesn't need the evidence to convict him. That is the stipulation under which he is getting out of jail for contempt. If the government did actually need to compel that evidence to make their case, they would be able to hold him idefinitely. Or else at least this ruling doesn't say otherwise.
14 7y ago
I guess if the crime you're accused of carries a sentence worse than 18 months, it might be worthwhile, but who knows... But in the US a criminal record can haunt you for decades. At job applications or housing applications. Elections. And many other bad things that haunt people for a long time. 18 months is horrible too but better then a criminal record haunting you.
ramblerman 7y ago
Are there no legal precedents for this? I mean the non-digital equivalent must have occurred already. Somebody has some secret books, and/or information. And buries them in the desert. Were they required to reveal the location?
fredgrott 7y ago
but its private speech or so it can be argued that way and that is in fact protected by the US Constitution as we can say stuff in private that we may not be allowed in public spaces public speech.

1000units 7y ago

My most important passphrases are very complicated, and I lose the ability to reproduce them from muscle memory (the only place they exist) after a few days of non-use. How can you prove passphrases are remembered?

gamblor956 7y ago
They don't have to prove that you remember the passphrases. They just have to show that the encrypted devices/partitions/whatever were in your custody at the time of encryption. Then you have to (a) show why you weren't the one to encrypt the devices or (b) make a 5th Amendment argument about why you don't have to turn over the encryption key during which time you may be incarcerated. "I forgot" is generally not a valid defense.
- Forbo 7y ago
  > "I forgot" is generally not a valid defense. The number of times that people invoke "I don't recall" while giving testimony under oath says otherwise.
  - LanceH 7y ago
    When they start applying these standards to politicians, then I'll be ok with it trickling down the people.
    - incompatible 7y ago
      It's really a different situation. The ruling party is basically above the law in the US, thanks to presidential pardons and control of the impeachment process.
      - LanceH 7y ago
        Sure. It's a false hypothesis, so it will never happen, and I can consistently say that I'll never be ok with this being applied to the people.
      - 1000units 7y ago
        You're halfway to an important insight, but your partisanism is blinding.
  - gamblor956 7y ago
    We're talking about two very different things. And for the record, a defendant claiming "they forgot" something within their control is valid circumstantial evidence of guilt or responsibility. When claimed by the police or prosecution witness, it's just as much valid evidence against guilt, and has been used many times to get defendants off. Basically, it's valid circumstantial evidence against the party/side that makes the claim of forgetfulness.
- solveit 7y ago
  "I encrypted the device but don't have the key" isn't a defense to being compelled to decrypt the device?

thaumasiotes 7y ago

> Rawls argued that producing a password for the hard drives would amount to an admission that he owned the hard drives. But the 3rd Circuit rejected that argument. It held that the government already had ample evidence that Rawls owned the hard drives and knew the passwords required to decrypt them. So ordering Rawls to decrypt the drives wouldn't give the government any information it didn't already have. Of course, the contents of the hard drive might incriminate Rawls, but the contents of the hard drive are not considered testimony for Fifth Amendment purposes. This would seem to imply that if the government has ample evidence that you murdered someone, they can require you to admit to it in court.

SpicyLemonZest 7y ago
They can't require you to personally admit to it, but if they know about a notebook where you wrote it they can require you to give up the notebook. (The rule makes more sense if you think about it in terms of financial crimes; it'd be hard to ever prosecute someone for fraud if they didn't have to give up their books.)
- tsimionescu 7y ago
  The GP's point was that, if the bar for the 5th amendment is that you may be required to provide testify against yourself as long as the government already knows the piece you are required to testify about, it's not clear how that wouldn't apply to you being required to admit your guilt when the government has sufficient evidence that you are guilty. I'd also note that giving the government your books is required by financial laws as a condition do being allowed to do business, it's not testimony or your general obligation of cooperating with an investigation.
  - wahern 7y ago
    Generally speaking, any non-testimonial evidence entered into court must be backed by a witness testifying to the nature, content (e.g. literally reciting the incriminating parts), and origins of the evidence. And that person has to have had a proper relationship to the evidence to do so, which is usually the person with the most direct and close relationship to an item or act. For example, if you want to enter verbal statements into evidence, the best and proper person to testify to them is usually the person who made the statement, not a listener. Another way to look at it is that the only real evidence in court is witness testimony; everything else is just window dressing. Thus we have the Fifth Amendment: "[no person] shall be compelled in any criminal case to be a witness against himself." How does that get turned into a rule that a defendant can't be forced to divulge information outside court? Because to be admissible in court such information would normally require the defendant to be a witness. If it's not admissible then there's no legitimate basis for the state to compel an act. That leads to two corollaries: 1) if the person isn't a defendant, or is given immunity, he would never be required to be a witness against himself (just a witness against someone else), and thus the Fifth Amendment isn't implicated; 2) if the evidence obtained from the information would be admissible without the defendant's testimony, the Fifth Amendment likewise isn't implicated. #2 is the case here. Because the government can already show ownership of the hard drives through other witness testimony (e.g. testimony of a relative, purchase receipts, etc), it would be categorically unnecessary for the defendant to testify in court to the incriminating act of divulging the password. However, if for some reason it later turned out that the government couldn't show ownership independently, then of course the hard drives would be inadmissible; not because of the forced password disclosure, per se, but simply because the defendant himself couldn't be compelled to be a witness to his act of divulging the password--an investigator couldn't testify that the defendant disclosed the password as that would be hearsay.[1] But such a turnaround is rare as a court won't compel disclosure unless it's clear there's ample independent and admissible evidence of ownership. [1] There are lots of exclusions and exceptions to hearsay, especially regarding defendant admissions, but they're disallowed if they would effectively nullify the spirit of the Fifth Amendment if permitted for compelled acts. If you're a strict textualist, as most conservative-leaning people believe themselves to be, then one would presumably be okay with permitting those exceptions, particularly those exceptions which existed at the time of ratification of the Fifth Amendment.

acchow 7y ago

It's complicated - the guy claimed he forgot his password. So what does the law do at that point?

ship_it 7y ago
Yes, I'm wondering about the law regulation in such cases too
Johnny555 7y ago
That seems like a plausible excuse. Years ago I encrypted an email archive with what I thought was an easy to remember password. But I've forgotten the password. I remember some of the password so I wrote a password cracker to try variants of that, but I still can't get in. If the feds seized my hard drive and wanted me to decrypt that file, can they lock me up until I give up the password even if I really have forgotten it?
- tedunangst 7y ago
  I suppose the judge will consider such factors as whether the drive is attached to your computer or shows signs of recent use. If your shell history shows you mounting the drive the day before arrest, that wouldn't play well.
  - ClumsyPilot 7y ago
    To lock up people forever for such things is to me unthinkable. There is no established responsibility to remember you password, or keep it safe. Memory failures are not very predictable
    - chii 7y ago
      The law often uses the "reasonable person" as a standard to measure such responsibilities. So would it make sense for a reasonable person to forget a password they typed in only yesterday (and/or perhaps many times before)?

asdfasgasdgasdg 7y ago

Also worth noting that the court appears to only be saying that he can't be locked up because the government likely doesn't need the evidence to convict him. That is the stipulation under which he is getting out of jail for contempt. If the government did actually need to compel that evidence to make their case, they would be able to hold him idefinitely. Or else at least this ruling doesn't say otherwise.

14 7y ago

I guess if the crime you're accused of carries a sentence worse than 18 months, it might be worthwhile, but who knows... But in the US a criminal record can haunt you for decades. At job applications or housing applications. Elections. And many other bad things that haunt people for a long time. 18 months is horrible too but better then a criminal record haunting you.

ramblerman 7y ago

Are there no legal precedents for this? I mean the non-digital equivalent must have occurred already. Somebody has some secret books, and/or information. And buries them in the desert. Were they required to reveal the location?

fredgrott 7y ago

but its private speech or so it can be argued that way and that is in fact protected by the US Constitution as we can say stuff in private that we may not be allowed in public spaces public speech.