6 ms·

Aren't there statutes against forced self-incrimination by the court? I am definitely not a lawyer.

by checker 15y ago

jgmmo 15y ago
It's called the Fifth Amendment. "nor shall be compelled in any criminal case to be a witness against himself"
- maratd 15y ago
  The password that you are requested to provide to the court is not incriminating. There is no law against having passwords or using passwords. The Fifth Amendment doesn't apply. The incriminating part is the data on the drive ... and you are not being requested to testify ... it's there and has already been confiscated by the police using a legal warrant. This situation stinks, for sure. If you want to protect yourself, use shadow volumes. Far better solution than questionable legal arguments.
  - wisty 15y ago
    "Questionable" is the key point here. We can't be sure if the defence holds water until it has been thoroughly tested in court. As for shadow volumes, that's a whole other kettle of fish. I'm sure it won't be quite that simple - if your VLC history has a link to /shadow-volume/pirate_movie.avi then they may be able to compel you to decrypt it.
    - maratd 15y ago
      That's not what it would look like. VLC would have a link to D:\pirate_movie.avi but when you decrypt the volume, all it shows is a bunch of text files on D:\ ... because the password provided is a trigger for the software to show a bunch of text files, not your pirated movie collection. Granted, if we were working for the prosecutor we would be able to put 2 and 2 together ... but ... these are the same morons who just a few days ago grabbed an entire rack instead of one server, not being able to tell the difference. You're giving them too much credit. Anyway, as of right now, cops/prosecutor only get real excited if there's naked children involved ... and frankly, you shouldn't be doing that sort of shit anyway. Just jerk off to normal porn like everybody else, problem solved.
      - AretNCarlsen 15y ago
        And if they do put 2 and 2 together, now you have perjured yourself, not just refused to testify. Much worse. > Just jerk off to normal porn like everybody else, problem solved. sigh First they came for those accused of pedophilia, and I said nothing because I wasn't accused of pedophilia.
        westicle 15y ago
        Ironic invocation of Godwin's Law?
        vukk 15y ago
        http://en.wikipedia.org/wiki/First_they_came.. http://en.wikipedia.org/wiki/First_they_came...
      - sorbus 15y ago
        > these are the same morons who just a few days ago grabbed an entire rack instead of one server, not being able to tell the difference. The FBI agents who did that are very much not prosecutors (and we still don't know why the FBI did that; it may have been intentional).
        seanp2k 15y ago
        THE WORLD MAY NEVER KNOW http://www.dedleg.com/wordpress/wp-content/uploads/2010/03/mr_owl_skateboard.jpg http://www.dedleg.com/wordpress/wp-content/uploads/2010/03/m...
  - ahi 15y ago
    Providing the password is an admission of knowing the password.
ptomato 15y ago
I'm not one either, but laws against self-incrimination do not mean you can withhold/destroy evidence.
- dvogel 15y ago
  To charge someone for withholding evidence, wouldn't you have to show that they had the evidence? For example, in the case of a deleted file, you would have to show that they deleted the file after being charged. Else deleting any file ever would potentially be a crime. Now consider the case there that file is the encryption key.
- gcb 15y ago
  No one is withhold/destroying evidence in that case. it's there for anyone to see... encrypted. Can I go to federal prison if the police ask to me translate some paper in foreign language I happen to have in my pocket and i refuse/don't know the language?
  - mbreese 15y ago
    No, you couldn't be compelled to translate a document in a foreign language. The police have another way to get the information - ask someone else who knows the language to do it. You would be making their job harder, but not impossible. In the case of an encryption key, you might be the only one that can assist the investigation. So you'd be hindering it. At least that's how I'd see it.
    - wtallis 15y ago
      The accused will often be the only one who knows how strong the encryption is, or how prevalent the foreign language is, so they're the only one who knows whether it is possible for the police to decrypt/translate without their cooperation. Thus, in reality, the determination of whether the accused can be compelled to provide the decryption information cannot depend on the strength of the encryption/obfuscation.
    - gcb 15y ago
      it may not even be a real language... you are distorting the point. I myself may not know how to read what is on the paper
pavel_lishin 15y ago
ptomato's and jgmmo's answers are both right (I think), but seem a little contradictory. If I can be compelled to provide physical evidence, why can't I be compelled to provide mental evidence, e.g. testimony about my crime?
- runningdogx 15y ago
  The legal apparatus you identify is based on the 5th amendment, interpreted through the lens of mythological, historical ideas of how "thought" is different from information recorded external to the brain. If you think things are confusing now, wait until merely sticking electrodes on someone's head and making them think about certain things by talking to them, without requiring any voluntary response, can generate usable evidence. Requiring someone to reveal a passphrase or access procedure to reveal encrypted or otherwise secured evidence, external to the brain, is the tip of the iceberg.
aaronblohowiak 15y ago
That exists to prevent the state from coercing a wrongful confession out of you. Compelling the truth out of you has no such moral hazard. I am not a constitutional scholar.
- runningdogx 15y ago
  The truth you can tell is only a fraction of a larger truth encompassing the entire universe of facts for a case the government may be investigating. Even if your portion of that truth is completely free of any wrongdoing, when combined with the rest of the facts that may include lies or mistakes by other witnesses or incorrect analysis of physical evidence, you can end up getting into trouble for telling the truth. But we have never held, as the Supreme Court of Ohio did, that the privilege is unavailable to those who claim innocence. To the contrary, we have emphasized that one of the Fifth Amendment's "basic functions ... is to protect innocent men ... 'who otherwise might be ensnared by ambiguous circumstances.' " Grunewald v. United States, 353 U. S. 391, 421 (1957) (quoting Slochower v. Board of Higher Ed. of New York City, 350 U. S. 551, 557-558 (1956)) (emphasis in original). In Grunewald, we recognized that truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker's own mouth. 353 U. S., at 421-422. -- Supreme Court in Ohio v Matthew Reiner, http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=00-1028 http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&#3...
- tomjen3 15y ago
  As is often the case with constitutional protections, the protection is a result of the English monarchy's abuse of power. In this case it is to prevent another star chamber[http://en.wikipedia.org/wiki/Star_Chamber http://en.wikipedia.org/wiki/Star_Chamber] where "Court sessions were held in secret, with no indictments, no right of appeal, no juries, and no witnesses." The fifth protect you from having to compel a statement, since you can then be declared guilty for either: any invented crime you testify you did (if you testify as they want you to); perjury (if you testify, but not what they want you to say); contempt of court (if you refuse to testify).

Aren't there statutes against forced self-incrimination by the court? I am definitely not a lawyer.

by checker 15y ago

Aren't there statutes against forced self-incrimination by the court? I am definitely not a lawyer.

jgmmo 15y ago

It's called the Fifth Amendment. "nor shall be compelled in any criminal case to be a witness against himself"

maratd 15y ago
The password that you are requested to provide to the court is not incriminating. There is no law against having passwords or using passwords. The Fifth Amendment doesn't apply. The incriminating part is the data on the drive ... and you are not being requested to testify ... it's there and has already been confiscated by the police using a legal warrant. This situation stinks, for sure. If you want to protect yourself, use shadow volumes. Far better solution than questionable legal arguments.
- wisty 15y ago
  "Questionable" is the key point here. We can't be sure if the defence holds water until it has been thoroughly tested in court. As for shadow volumes, that's a whole other kettle of fish. I'm sure it won't be quite that simple - if your VLC history has a link to /shadow-volume/pirate_movie.avi then they may be able to compel you to decrypt it.
  - maratd 15y ago
    That's not what it would look like. VLC would have a link to D:\pirate_movie.avi but when you decrypt the volume, all it shows is a bunch of text files on D:\ ... because the password provided is a trigger for the software to show a bunch of text files, not your pirated movie collection. Granted, if we were working for the prosecutor we would be able to put 2 and 2 together ... but ... these are the same morons who just a few days ago grabbed an entire rack instead of one server, not being able to tell the difference. You're giving them too much credit. Anyway, as of right now, cops/prosecutor only get real excited if there's naked children involved ... and frankly, you shouldn't be doing that sort of shit anyway. Just jerk off to normal porn like everybody else, problem solved.
    - AretNCarlsen 15y ago
      And if they do put 2 and 2 together, now you have perjured yourself, not just refused to testify. Much worse. > Just jerk off to normal porn like everybody else, problem solved. sigh First they came for those accused of pedophilia, and I said nothing because I wasn't accused of pedophilia.
      - westicle 15y ago
        Ironic invocation of Godwin's Law?
        vukk 15y ago
        http://en.wikipedia.org/wiki/First_they_came.. http://en.wikipedia.org/wiki/First_they_came...
    - sorbus 15y ago
      > these are the same morons who just a few days ago grabbed an entire rack instead of one server, not being able to tell the difference. The FBI agents who did that are very much not prosecutors (and we still don't know why the FBI did that; it may have been intentional).
      - seanp2k 15y ago
        THE WORLD MAY NEVER KNOW http://www.dedleg.com/wordpress/wp-content/uploads/2010/03/mr_owl_skateboard.jpg http://www.dedleg.com/wordpress/wp-content/uploads/2010/03/m...
- ahi 15y ago
  Providing the password is an admission of knowing the password.

ptomato 15y ago

I'm not one either, but laws against self-incrimination do not mean you can withhold/destroy evidence.

dvogel 15y ago
To charge someone for withholding evidence, wouldn't you have to show that they had the evidence? For example, in the case of a deleted file, you would have to show that they deleted the file after being charged. Else deleting any file ever would potentially be a crime. Now consider the case there that file is the encryption key.
gcb 15y ago
No one is withhold/destroying evidence in that case. it's there for anyone to see... encrypted. Can I go to federal prison if the police ask to me translate some paper in foreign language I happen to have in my pocket and i refuse/don't know the language?
- mbreese 15y ago
  No, you couldn't be compelled to translate a document in a foreign language. The police have another way to get the information - ask someone else who knows the language to do it. You would be making their job harder, but not impossible. In the case of an encryption key, you might be the only one that can assist the investigation. So you'd be hindering it. At least that's how I'd see it.
  - wtallis 15y ago
    The accused will often be the only one who knows how strong the encryption is, or how prevalent the foreign language is, so they're the only one who knows whether it is possible for the police to decrypt/translate without their cooperation. Thus, in reality, the determination of whether the accused can be compelled to provide the decryption information cannot depend on the strength of the encryption/obfuscation.
  - gcb 15y ago
    it may not even be a real language... you are distorting the point. I myself may not know how to read what is on the paper

pavel_lishin 15y ago

ptomato's and jgmmo's answers are both right (I think), but seem a little contradictory. If I can be compelled to provide physical evidence, why can't I be compelled to provide mental evidence, e.g. testimony about my crime?

runningdogx 15y ago
The legal apparatus you identify is based on the 5th amendment, interpreted through the lens of mythological, historical ideas of how "thought" is different from information recorded external to the brain. If you think things are confusing now, wait until merely sticking electrodes on someone's head and making them think about certain things by talking to them, without requiring any voluntary response, can generate usable evidence. Requiring someone to reveal a passphrase or access procedure to reveal encrypted or otherwise secured evidence, external to the brain, is the tip of the iceberg.

aaronblohowiak 15y ago

That exists to prevent the state from coercing a wrongful confession out of you. Compelling the truth out of you has no such moral hazard. I am not a constitutional scholar.

runningdogx 15y ago
The truth you can tell is only a fraction of a larger truth encompassing the entire universe of facts for a case the government may be investigating. Even if your portion of that truth is completely free of any wrongdoing, when combined with the rest of the facts that may include lies or mistakes by other witnesses or incorrect analysis of physical evidence, you can end up getting into trouble for telling the truth. But we have never held, as the Supreme Court of Ohio did, that the privilege is unavailable to those who claim innocence. To the contrary, we have emphasized that one of the Fifth Amendment's "basic functions ... is to protect innocent men ... 'who otherwise might be ensnared by ambiguous circumstances.' " Grunewald v. United States, 353 U. S. 391, 421 (1957) (quoting Slochower v. Board of Higher Ed. of New York City, 350 U. S. 551, 557-558 (1956)) (emphasis in original). In Grunewald, we recognized that truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker's own mouth. 353 U. S., at 421-422. -- Supreme Court in Ohio v Matthew Reiner, http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=00-1028 http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&#3...
tomjen3 15y ago
As is often the case with constitutional protections, the protection is a result of the English monarchy's abuse of power. In this case it is to prevent another star chamber[http://en.wikipedia.org/wiki/Star_Chamber http://en.wikipedia.org/wiki/Star_Chamber] where "Court sessions were held in secret, with no indictments, no right of appeal, no juries, and no witnesses." The fifth protect you from having to compel a statement, since you can then be declared guilty for either: any invented crime you testify you did (if you testify as they want you to); perjury (if you testify, but not what they want you to say); contempt of court (if you refuse to testify).