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The problem with this new territory is exactly the unsettled issue of whether providing a password is testimonial and protected. The protection against self-in

The problem with this new territory is exactly the unsettled issue of whether providing a password is testimonial and protected. The protection against self-incrimination is/was a protection against being put on trial and being forced to say or give testimony that you took part in or committed a crime. It is not a protection against any and all evidence from being produced against you. In a previous age, not saying words was enough protection, because evidence was usually physical (objects). The novel problem now is that the types of evidence being protected by passwords (and the method of protection) now are so closely linked that it's quite difficult to say whether being compelled to reveal a password is testimonial. Suppose a suspect murdered someone and was seen putting the weapon in a safe, where the combination was known to be written in a person's private papers. Those papers could be compelled to be revealed without jeopardizing privilege because the discovery of the combination is not forcing a person to testify. Even compelling the person to reveal the combination might not be testimony. And in any case, the safe could be opened with much effort and a blowtorch. But now, the safe can never be cracked, and the person's knowledge of the password is the only thing that will open it. The person revealing the password will surely confirm his/her guilt, so it now feels very much like the info/knowledge is self-incriminating testimony. Modern problems. They need some court resolution at a high level.

tantalor 7y ago
It's not a modern problem. You could always rig a tamper-proof device (eg booby trap) to destroy evidence if forced without the key.
- banana_smoothie 7y ago
  While true, this is also a much more modern problem than the authors of the US constitution were subject to. If you stab people, you can wipe the blood off the knife. If you shoot someone, there was not a way to associate a projectile with a firearm. (Assuming the dubious merits of "firearm forensics".) Back in the good ol' 1780s, there's no presecutorial evidence to be gained by inspecting my safe because you cannot show that the knife/gun inside was the murder weapon.
- sjy 7y ago
  That’s quite a different problem, because if the booby trap goes off, the person who set it can’t be compelled to un-destroy the evidence.
  - shim__ 7y ago
    Not entirely if you account for secure elements which might erase the secretif the wrong pin was entered too many times or if an wipe code was entered.
akersten 7y ago
> The problem with this new territory is exactly the unsettled issue of whether providing a password is testimonial and protected. I can see no possible correct answer than "yes, absolutely, it is testimonial." If I may take some minor artistic liberty and change the words without changing the scenario: Consider a person on trial for murder, and the prosecution believes they wrote down where the body is buried on a piece of paper. The paper's got blood on it and was found next to a hatchet and duct tape. Gee shucks though, it's written in an ancient dialect of Silbo Gomero and they're the last person alive who speaks it. The prosecution would really love to have that evidence for their case. Can they make the defendant translate it for them? Absolutely not, right? That's clear-as-day 5th amendment, if-I-translate-this-for-you-I'm-incriminating-myself territory. It is the exact same concept with encryption. There is a piece of information unintelligible to an adversary (prosecutor), that the adversary believes (due to surrounding known evidence) would further their case. The only way to transform the information into something useful for the prosecutor is with the help of the defendant, using knowledge that exists only in the defendant's mind (password). Asking the defendant to create the evidence against themselves (evidence that does not exist until the defendant creates it, mind you - not something like the contents of a safe where the physical evidence exists whether the defendant wills it or not) is a 100% textbook 5th amendment violation. I really feel that if someone sees this any other way, they fundamentally misunderstand how encryption works. The documents the prosecution wants do not exist unless the defendant (re)creates them, and you can't ask someone to create evidence (testimony) against themselves (5th amendment, again).
skrause 7y ago
In Germany is rule is simply that you are not required to do anything to actively help our own prosecution. They want to take your fingerprints? You don't need to help by lifting your arm. They want you to open a safe? No need to tell them the combination, through they will crack it open if you refuse. Same with encryption keys, you don't need to say anything. Telling the truth? As the accused you're allowed to lie in court however you want. If you do get sentenced you can get a reduced sentence if the court thinks that you've been cooperative. But you can never get punished simply for the fact that you didn't help with your own prosecution.
- Cantbekhan 7y ago
  Unrelated and commented on the dupe thread but there is a similar case going on in the EU right now that is set to be appealed at the European Court of Human Rights. Last week the highest court of Belgium ruled that passwords to IT systems were not covered by the right not to incriminate one-self. And they also ruled that you could be jailed for up to 3 years for refusing to provide said passwords. This was in the case of an alleged drug dealer refusing to unlock his iphone. There is no appeal left for him at the national level and he's now set to appeal the decision at the ECHR which if not overruled might finally set the precedent for the whole EU. This little story deserves some follow up imho.
- supernova87a 7y ago
  > As the accused you're allowed to lie in court however you want. Really? I'm interested to know how this works, and how it is not perjury.
  - freddie_mercury 7y ago
    Lying is not illegal. Lying under oath is illegal. In Germany, judges rarely require witness to swear under oath. There also aren't juries in Germany. There also isn't cross-examination in Germany. The English way of law isn't the only way.
  - skrause 7y ago
    In Germany only witnesses are required to tell the truth (even without oath), but not the ones accused of a crime.
reportgunner 7y ago
> seen putting the weapon in a safe, where the combination was known to be written in a person's private papers Replace combination by password. Your example still works. If evidence is "locked" on an encrypted storage device and the password is in unencrypted plaintext form, it can be still used to "crack" the encryption without effort. But could you force the suspect to tell you the safe combination in your example ?

tantalor 7y ago

It's not a modern problem. You could always rig a tamper-proof device (eg booby trap) to destroy evidence if forced without the key.

banana_smoothie 7y ago
While true, this is also a much more modern problem than the authors of the US constitution were subject to. If you stab people, you can wipe the blood off the knife. If you shoot someone, there was not a way to associate a projectile with a firearm. (Assuming the dubious merits of "firearm forensics".) Back in the good ol' 1780s, there's no presecutorial evidence to be gained by inspecting my safe because you cannot show that the knife/gun inside was the murder weapon.
sjy 7y ago
That’s quite a different problem, because if the booby trap goes off, the person who set it can’t be compelled to un-destroy the evidence.
- shim__ 7y ago
  Not entirely if you account for secure elements which might erase the secretif the wrong pin was entered too many times or if an wipe code was entered.

akersten 7y ago

> The problem with this new territory is exactly the unsettled issue of whether providing a password is testimonial and protected. I can see no possible correct answer than "yes, absolutely, it is testimonial." If I may take some minor artistic liberty and change the words without changing the scenario: Consider a person on trial for murder, and the prosecution believes they wrote down where the body is buried on a piece of paper. The paper's got blood on it and was found next to a hatchet and duct tape. Gee shucks though, it's written in an ancient dialect of Silbo Gomero and they're the last person alive who speaks it. The prosecution would really love to have that evidence for their case. Can they make the defendant translate it for them? Absolutely not, right? That's clear-as-day 5th amendment, if-I-translate-this-for-you-I'm-incriminating-myself territory. It is the exact same concept with encryption. There is a piece of information unintelligible to an adversary (prosecutor), that the adversary believes (due to surrounding known evidence) would further their case. The only way to transform the information into something useful for the prosecutor is with the help of the defendant, using knowledge that exists only in the defendant's mind (password). Asking the defendant to create the evidence against themselves (evidence that does not exist until the defendant creates it, mind you - not something like the contents of a safe where the physical evidence exists whether the defendant wills it or not) is a 100% textbook 5th amendment violation. I really feel that if someone sees this any other way, they fundamentally misunderstand how encryption works. The documents the prosecution wants do not exist unless the defendant (re)creates them, and you can't ask someone to create evidence (testimony) against themselves (5th amendment, again).

skrause 7y ago

In Germany is rule is simply that you are not required to do anything to actively help our own prosecution. They want to take your fingerprints? You don't need to help by lifting your arm. They want you to open a safe? No need to tell them the combination, through they will crack it open if you refuse. Same with encryption keys, you don't need to say anything. Telling the truth? As the accused you're allowed to lie in court however you want. If you do get sentenced you can get a reduced sentence if the court thinks that you've been cooperative. But you can never get punished simply for the fact that you didn't help with your own prosecution.

Cantbekhan 7y ago
Unrelated and commented on the dupe thread but there is a similar case going on in the EU right now that is set to be appealed at the European Court of Human Rights. Last week the highest court of Belgium ruled that passwords to IT systems were not covered by the right not to incriminate one-self. And they also ruled that you could be jailed for up to 3 years for refusing to provide said passwords. This was in the case of an alleged drug dealer refusing to unlock his iphone. There is no appeal left for him at the national level and he's now set to appeal the decision at the ECHR which if not overruled might finally set the precedent for the whole EU. This little story deserves some follow up imho.
supernova87a 7y ago
> As the accused you're allowed to lie in court however you want. Really? I'm interested to know how this works, and how it is not perjury.
- freddie_mercury 7y ago
  Lying is not illegal. Lying under oath is illegal. In Germany, judges rarely require witness to swear under oath. There also aren't juries in Germany. There also isn't cross-examination in Germany. The English way of law isn't the only way.
- skrause 7y ago
  In Germany only witnesses are required to tell the truth (even without oath), but not the ones accused of a crime.

reportgunner 7y ago

> seen putting the weapon in a safe, where the combination was known to be written in a person's private papers Replace combination by password. Your example still works. If evidence is "locked" on an encrypted storage device and the password is in unencrypted plaintext form, it can be still used to "crack" the encryption without effort. But could you force the suspect to tell you the safe combination in your example ?