5 ms·

But wait, does this say that another court order can compel you to unlock it anyways? That doesn't seem logical at all.

lelanthran 5y ago
> But wait, does this say that another court order can compel you to unlock it anyways? If a court can compel speech, then they may as well go ahead and compel the suspect to confess. There's no difference, once the courts compel speech.
- warkdarrior 5y ago
  It does not make sense to compel someone to confess, because that presumes the person is guilty. But it may make sense to compel someone to share factual information ("the PIN is 1234") or to provide access to information.
  - lelanthran 5y ago
    > But it may make sense to compel someone to share factual information ("the PIN is 1234") or to provide access to information. No, it does not, because "compel" means that if they do not comply you punish them until they do. How are you to know whether or not they actually remember the information you are asking ("The PIN was, err .. 1235?"). This leads to effectively punishing them for not giving the "correct" answer, which is no different from punishing them for not confessing. Once you go down the path of punishing people for not divulging the contents of their mind, you may well just punish them for the crime itself and not bother with a trial. If you allow compelled speech, there is no reason to have a trial.
postingawayonhn 5y ago
Right to remain silent vs. a court order to provide access to evidence.
- Cthulhu_ 5y ago
  Yeah but that access has to come from your brain; doesn't it therefore fall under the 5th amendment that you have the right to remain silent and something something self-incrimination? I mean I'm trying to think of other instances of getting access to evidence, and the only things I can think of is companies having to provide certain administrative documentation that may not even be their own. But that's probably me lacking imagination.
  - NineStarPoint 5y ago
    On companies providing documentation, the big point is that collective entities are not protected by the fifth amendment. You cannot invoke the fifth to protect a group you are a member of from liability, the fifth is a purely individual right. So anything related to companies and the fifth amendment doesn’t transfer over to individuals and the fifth amendment.
  - lugged 5y ago
    Don't a lot of cp cases hinge on being able to compel computer owners to decrypt hard drives?
    - namelessoracle 5y ago
      Yes, but the case law for this is beyond complex and changes by jurisdiction. I think it hinges on if the search for the hard drives is for specific files or exploratory. IOW "we saw traffic that led us to believe he downloaded this specific piece of CP on this date and we want to verify its there" vs "we believe there is CP on his hard drive based on testimony from this person who said he shared CP with that person". But the case law for this is super complex and changes by jurisdiction. But if a judge tells you to unlock the hard drive they will 100 percent throw you in jail until you unlock it. For years even. If what they did was "illegal" then there will be no consequences for the judge.
      - buildbot 5y ago
        I feel like this precedent makes it a liability to have any old encrypted drives around that you've forgotten the password too...
ceejayoz 5y ago
The answer to that is unknown. The most recent case to make its way up to SCOTUS got declined. https://www.scotusblog.com/case-files/cases/andrews-v-new-jersey/ https://www.scotusblog.com/case-files/cases/andrews-v-new-je... There are disagreements at the lower courts on the matter.

> But wait, does this say that another court order can compel you to unlock it anyways? If a court can compel speech, then they may as well go ahead and compel the suspect to confess. There's no difference, once the courts compel speech.

warkdarrior 5y ago
It does not make sense to compel someone to confess, because that presumes the person is guilty. But it may make sense to compel someone to share factual information ("the PIN is 1234") or to provide access to information.
- lelanthran 5y ago
  > But it may make sense to compel someone to share factual information ("the PIN is 1234") or to provide access to information. No, it does not, because "compel" means that if they do not comply you punish them until they do. How are you to know whether or not they actually remember the information you are asking ("The PIN was, err .. 1235?"). This leads to effectively punishing them for not giving the "correct" answer, which is no different from punishing them for not confessing. Once you go down the path of punishing people for not divulging the contents of their mind, you may well just punish them for the crime itself and not bother with a trial. If you allow compelled speech, there is no reason to have a trial.

postingawayonhn 5y ago

Right to remain silent vs. a court order to provide access to evidence.

Cthulhu_ 5y ago
Yeah but that access has to come from your brain; doesn't it therefore fall under the 5th amendment that you have the right to remain silent and something something self-incrimination? I mean I'm trying to think of other instances of getting access to evidence, and the only things I can think of is companies having to provide certain administrative documentation that may not even be their own. But that's probably me lacking imagination.
- NineStarPoint 5y ago
  On companies providing documentation, the big point is that collective entities are not protected by the fifth amendment. You cannot invoke the fifth to protect a group you are a member of from liability, the fifth is a purely individual right. So anything related to companies and the fifth amendment doesn’t transfer over to individuals and the fifth amendment.
- lugged 5y ago
  Don't a lot of cp cases hinge on being able to compel computer owners to decrypt hard drives?
  - namelessoracle 5y ago
    Yes, but the case law for this is beyond complex and changes by jurisdiction. I think it hinges on if the search for the hard drives is for specific files or exploratory. IOW "we saw traffic that led us to believe he downloaded this specific piece of CP on this date and we want to verify its there" vs "we believe there is CP on his hard drive based on testimony from this person who said he shared CP with that person". But the case law for this is super complex and changes by jurisdiction. But if a judge tells you to unlock the hard drive they will 100 percent throw you in jail until you unlock it. For years even. If what they did was "illegal" then there will be no consequences for the judge.
    - buildbot 5y ago
      I feel like this precedent makes it a liability to have any old encrypted drives around that you've forgotten the password too...

ceejayoz 5y ago

The answer to that is unknown. The most recent case to make its way up to SCOTUS got declined. https://www.scotusblog.com/case-files/cases/andrews-v-new-jersey/ https://www.scotusblog.com/case-files/cases/andrews-v-new-je... There are disagreements at the lower courts on the matter.