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This is the reason America's 5th amendment exists, people have the ability to not self-incriminate because it gives way for a different form of obstruction of j

This is the reason America's 5th amendment exists, people have the ability to not self-incriminate because it gives way for a different form of obstruction of justice, compelling people to speak under duress mainly. I've long wished most of the American constitution made it's way over to Britain. We've had many of the freedoms enshrined in it for centuries but a few, particularly the principle of freedom of speech, has been trampled over in the internet age.

d110af5ccf 5y ago
While the fifth amendment in the US is certainly a good principle, even it doesn't (currently) appear to provide a blanket protection against providing your passwords. My (likely incomplete) understanding of the current situation is that things are still ambiguous with many nuances not yet having been settled by the courts. On the one hand, there is federal precedent (https://law.justia.com/cases/federal/appellate-courts/ca3/17-3205/17-3205-2020-02-06.html https://law.justia.com/cases/federal/appellate-courts/ca3/17...) that the government must be able to demonstrate both that the defendant knows the password and that criminal evidence is known to exist on the device. The bar for both of these things appears to be fairly high. On the other hand, there is precedent at the state level in Pennsylvania (https://law.justia.com/cases/pennsylvania/supreme-court/2019/56-map-2018.html https://law.justia.com/cases/pennsylvania/supreme-court/2019...) that disclosure of passwords is testimonial in nature and therefore always (I think?) protected, even if you admit both to knowing the password and to the existence of criminal evidence. Note the different jurisdictions for the precedents here. In federal courts that fall under the third circuit (which includes Pennsylvania), the first one applies. In state courts within Pennsylvania, the second one applies. This oddity won't change until and unless the US Supreme Court chooses to hear a relevant case. So in Pennsylvania, the law is currently different depending on if the FBI or the local police is the one prosecuting you. Also note that from the first case, failure to provide the password is a form of civil contempt and therefore confinement is limited to 18 months at most.

d110af5ccf 5y ago

While the fifth amendment in the US is certainly a good principle, even it doesn't (currently) appear to provide a blanket protection against providing your passwords. My (likely incomplete) understanding of the current situation is that things are still ambiguous with many nuances not yet having been settled by the courts. On the one hand, there is federal precedent (https://law.justia.com/cases/federal/appellate-courts/ca3/17-3205/17-3205-2020-02-06.html https://law.justia.com/cases/federal/appellate-courts/ca3/17...) that the government must be able to demonstrate both that the defendant knows the password and that criminal evidence is known to exist on the device. The bar for both of these things appears to be fairly high. On the other hand, there is precedent at the state level in Pennsylvania (https://law.justia.com/cases/pennsylvania/supreme-court/2019/56-map-2018.html https://law.justia.com/cases/pennsylvania/supreme-court/2019...) that disclosure of passwords is testimonial in nature and therefore always (I think?) protected, even if you admit both to knowing the password and to the existence of criminal evidence. Note the different jurisdictions for the precedents here. In federal courts that fall under the third circuit (which includes Pennsylvania), the first one applies. In state courts within Pennsylvania, the second one applies. This oddity won't change until and unless the US Supreme Court chooses to hear a relevant case. So in Pennsylvania, the law is currently different depending on if the FBI or the local police is the one prosecuting you. Also note that from the first case, failure to provide the password is a form of civil contempt and therefore confinement is limited to 18 months at most.