5 ms·
What if your passphrase to your truecrypt container (let's say it contains, for the purpose of this thought experiment, child pornography) is the true statement
by runningdogx 15y ago
What if your passphrase to your truecrypt container (let's say it contains, for the purpose of this thought experiment, child pornography) is the true statement: "I am [for this thought experiment] a child pornography collector."
Wouldn't it be a violation of the 5th amendment to be compelled to provide that passphrase, because it is an admission against interest and therefore would be admissible if you disclosed it? Wouldn't it also serve to waive 5th amendment privilege, and possibly put you at risk of being forced to take the stand?
If it were an admission of a different crime, a court could grant you immunity on those unrelated charges, but if it is relevant to the crime the government is investigating by asking you to reveal your passphrase... how can anyone, luddite judge or not, separate "key" from "testimony" in that circumstance?
- rjh29 15y agoI don't see how providing a passphrase is an admission of anything. You're not stating a fact, you're just providing the passphrase, which could be anything (true or false).
- xijhing 15y ago5th amendment is the right against self-incrimination. The response could provide self-incriminating evidence of an illegal act punishable by fines, penalties or forfeiture. Giving a password to your encrypted database could easily be interpreted as testifying against yourself as defined in the 5th amendment. Relevant: http://www.youtube.com/watch?v=i8z7NC5sgik#at=950 http://www.youtube.com/watch?v=i8z7NC5sgik#at=950
- lmkg 15y agoYou're admitting you have a passphrase, and therefore that you have access to the information it protects. This piece of information is non-trivial, as it eliminates one avenue of plausible deniability, and actions that implicitly provide this information are recognized as testimonial in nature.
- dvogel 15y agoCompliance doesn't require that you provide them with the passphrase. It simply requires that you provide access to the material. Typing your password into the computer to let them copy the material would suffice.
- johnrob 15y agoThe 5th amendment doesn't mean you can block normal legal proceedings just because they would happen to incriminate you. You do have the right to remain silent, however. That might be a stronger defense.
- etha 15y agoThat only means you don't have to say anything to the police while you are in custody but have not yet been charged with a crime, and your lawyer is not present. It's not meant as a blanket protection against having to give testimony.
- Canada 15y agoYes, it is in fact a blanket protection against having to give testimony.
- maratd 15y agoProviding a password is not testimony. You're not testifying to anything.
- marshray 15y agoThen what is it?
- Nelson69 15y agoProviding access to subpoenaed evidence. The evidence is what it is, the court is there to judge it.
- mikeryan 15y agoMy understanding is that whether or not providing a password is or is not testimony is not clearly defined. There have in fact been a few instances where judges have determined that providing a password does constitute giving testimony. http://www.easterndistrictblog.com/?p=57 http://www.easterndistrictblog.com/?p=57 and older http://mises.org/Community/blogs/crypto/archive/2007/12/18/court-ruling-protects-encryption-keys-as-a-fifth-amendment-right.aspx http://mises.org/Community/blogs/crypto/archive/2007/12/18/c...
- noblethrasher 15y agoPhilosophically it's not a problem: http://en.wikipedia.org/wiki/Use%E2%80%93mention_distinction http://en.wikipedia.org/wiki/Use%E2%80%93mention_distinction In the context of testimony, I'd argue (as a philosopher, not a lawyer) that a mention does not count as testimony and cannot be used against you. Obviously, an observation of the mention could lead the police to consider other avenues of investigation however.
- megaman821 15y agoWhat if you pass phrase was "I have child porn on my hard-drive", then could you plead the fifth?
- evgen 15y agoYou could try. The judge could also demand that you provide your lawyer with the pass phrase and that the lawyer then enter that pass phrase when required to by the digital forensics team in such a way that does not reveal the password to the forensics team. The judge also has the authority to strike things from the record and could simple demand that you provide the pass phrase and that any mention of the actual pass phrase not be used in court and that any such usage will not be a part of the trial records. Either way, the 5th is a weak shield to try to hide behind in this case.
- jules 15y agoWouldn't it be the same if you had child porn in your house?