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You have a fifth amendment right not to incriminate yourself, which the article mentions by noting that you don't have to give up your password when asked. In

You have a fifth amendment right not to incriminate yourself, which the article mentions by noting that you don't have to give up your password when asked. In my mind (IANAL), if I don't have to give up information about myself, then I have the right to encrypt my information, and to not be presumed a criminal merely for having encrypted my information. Note that the 5th amendment is not about protecting your criminal activity, since you're presumed innocent unless convicted. It's a right that you have regardless of your character or activity.

tptacek 15y ago
You don't have a right not to leave evidence. If you did, destruction of evidence wouldn't be a crime.
- DasIch 15y ago
  We are not talking about evidence here, we are talking about information that at some point may be considered evidence. That is a big difference.
- burgerbrain 15y ago
  I'm struggling to figure out how this comment is related to the one that you responded to. Did you respond to the wrong one?
- sixtofour 15y ago
  I was going to mention a similar scenario of cooking accounting books as a counter to my non-lawyerly argument.
nirvana 15y ago
You're right, but I posed this very question to Kevin Mitnick once. He had just recounted how, during his prosecution, he'd been forced to give up his passphrase. (This was several years ago, and so I might have some specific details wrong, and I'm also going to be a bit vague about it as a result.) I asked him why he didn't just plead the 5th. He said he tried, but that they moved him into solitary and they started abusing him in jail. (abuse is my word, I don't remember the specifics) and they they used every method they could to force him to give up the passphrase, including, I believe, holding him in contempt for not revealing it. Eventually he revealed it. It is my opinion, having read accounts of people being prosecuted by the government for various crimes over the past 20 years, that in many cases, the government does not hold itself within the bounds of the law, and that such prosecutions are often illegal themselves. Yet, they are able to get away with this, because, what prosecutor is going to destroy their career by pressing charges on cops, other prosecutors or judges? Also, in this day and age, asset forfeiture is extremely easy. The government can seize all of your assets, effectively denying you the ability to pay your legal counsel, forcing you to rely on the legal services they provide for you. Further, even if you can afford your own counsel, as an "officer of the court" they are subject to extreme pressure. I've read about a fair number of situations where lawyers would not even introduce constitutional arguments for their defendants innocence because it would result in recriminations against the lawyers by the judge. (e.g.: its "frivolous" to claim that federal drug laws are unconstitutional, even though to criminalize alcohol an amendment was needed.) I'm not a lawyer, of course, this is just my perspective.
- burgerbrain 15y ago
  "He said he tried, but that they moved him into solitary and they started abusing him in jail. (abuse is my word, I don't remember the specifics)" Solitary itself could reasonably be described as abuse.
  - droithomme 15y ago
    Reading the description that was given, if it did go down as described, that sounds every bit to be torturing a prisoner until he confesses.
    - burgerbrain 15y ago
      That is precisely what it is.
- billswift 15y ago
  Twenty years? How the Government Breaks the Law (http://www.amazon.com/How-Government-Breaks-Jethro-Lieberman/dp/B000RVWAKA/ref=sr_1_2?ie=UTF8&qid=1321657251&sr=8-2 http://www.amazon.com/How-Government-Breaks-Jethro-Lieberman...) was published in 1974. And twenty years before that the "third degree" was still in common use by police.
- redler 15y ago
  It's unlikely there will be a breakthrough that allows adversaries (in the cryptography sense) to crack properly implemented strong encryption. Faced with this dilemma, the only other options for the government are varying degrees of black-bag and rubber-hose cryptanalysis. Surveillance (legal or otherwise), asset forfeiture laws, jailing for contempt, lawsuits, deception -- all are just different forms of the rubber hose. It worked against Mitnick, and it would probably work against most of us. http://en.wikipedia.org/wiki/Rubber-hose_cryptanalysis http://en.wikipedia.org/wiki/Rubber-hose_cryptanalysis http://en.wikipedia.org/wiki/Black-bag_cryptanalysis http://en.wikipedia.org/wiki/Black-bag_cryptanalysis
  - etherael 15y ago
timwiseman 15y ago
I am not a lawyer either, but generally you can be compelled to reveal a password. It is generally seen as analogous to the combination to a safe or a key to a door. Compelling revelation of the password is not generally seen as a violation of the Fifth ammendment. While a ruling from a lower court, there is a good discussion of this at IN RE JURY SUBPOENA TO SEBASTIEN BOUCHER, Dist. Court, D. Vermont 2009 (which is available on Google Scholar)
cpeterso 15y ago
Someone could use a two-factor system that splits the decryption key into a memorized passphrase and a physical token. Even if the person reveals their passphrase, the data cannot be decrypted without the rest of the key on the physical token (something that could easily be destroyed).
- greiskul 15y ago
  This is called destruction of evidence, and is a crime.

tptacek 15y ago

You don't have a right not to leave evidence. If you did, destruction of evidence wouldn't be a crime.

DasIch 15y ago
We are not talking about evidence here, we are talking about information that at some point may be considered evidence. That is a big difference.
burgerbrain 15y ago
I'm struggling to figure out how this comment is related to the one that you responded to. Did you respond to the wrong one?
sixtofour 15y ago
I was going to mention a similar scenario of cooking accounting books as a counter to my non-lawyerly argument.

nirvana 15y ago

You're right, but I posed this very question to Kevin Mitnick once. He had just recounted how, during his prosecution, he'd been forced to give up his passphrase. (This was several years ago, and so I might have some specific details wrong, and I'm also going to be a bit vague about it as a result.) I asked him why he didn't just plead the 5th. He said he tried, but that they moved him into solitary and they started abusing him in jail. (abuse is my word, I don't remember the specifics) and they they used every method they could to force him to give up the passphrase, including, I believe, holding him in contempt for not revealing it. Eventually he revealed it. It is my opinion, having read accounts of people being prosecuted by the government for various crimes over the past 20 years, that in many cases, the government does not hold itself within the bounds of the law, and that such prosecutions are often illegal themselves. Yet, they are able to get away with this, because, what prosecutor is going to destroy their career by pressing charges on cops, other prosecutors or judges? Also, in this day and age, asset forfeiture is extremely easy. The government can seize all of your assets, effectively denying you the ability to pay your legal counsel, forcing you to rely on the legal services they provide for you. Further, even if you can afford your own counsel, as an "officer of the court" they are subject to extreme pressure. I've read about a fair number of situations where lawyers would not even introduce constitutional arguments for their defendants innocence because it would result in recriminations against the lawyers by the judge. (e.g.: its "frivolous" to claim that federal drug laws are unconstitutional, even though to criminalize alcohol an amendment was needed.) I'm not a lawyer, of course, this is just my perspective.

burgerbrain 15y ago
"He said he tried, but that they moved him into solitary and they started abusing him in jail. (abuse is my word, I don't remember the specifics)" Solitary itself could reasonably be described as abuse.
- droithomme 15y ago
  Reading the description that was given, if it did go down as described, that sounds every bit to be torturing a prisoner until he confesses.
  - burgerbrain 15y ago
    That is precisely what it is.
billswift 15y ago
Twenty years? How the Government Breaks the Law (http://www.amazon.com/How-Government-Breaks-Jethro-Lieberman/dp/B000RVWAKA/ref=sr_1_2?ie=UTF8&qid=1321657251&sr=8-2 http://www.amazon.com/How-Government-Breaks-Jethro-Lieberman...) was published in 1974. And twenty years before that the "third degree" was still in common use by police.
redler 15y ago
It's unlikely there will be a breakthrough that allows adversaries (in the cryptography sense) to crack properly implemented strong encryption. Faced with this dilemma, the only other options for the government are varying degrees of black-bag and rubber-hose cryptanalysis. Surveillance (legal or otherwise), asset forfeiture laws, jailing for contempt, lawsuits, deception -- all are just different forms of the rubber hose. It worked against Mitnick, and it would probably work against most of us. http://en.wikipedia.org/wiki/Rubber-hose_cryptanalysis http://en.wikipedia.org/wiki/Rubber-hose_cryptanalysis http://en.wikipedia.org/wiki/Black-bag_cryptanalysis http://en.wikipedia.org/wiki/Black-bag_cryptanalysis
- etherael 15y ago

timwiseman 15y ago

I am not a lawyer either, but generally you can be compelled to reveal a password. It is generally seen as analogous to the combination to a safe or a key to a door. Compelling revelation of the password is not generally seen as a violation of the Fifth ammendment. While a ruling from a lower court, there is a good discussion of this at IN RE JURY SUBPOENA TO SEBASTIEN BOUCHER, Dist. Court, D. Vermont 2009 (which is available on Google Scholar)

cpeterso 15y ago

Someone could use a two-factor system that splits the decryption key into a memorized passphrase and a physical token. Even if the person reveals their passphrase, the data cannot be decrypted without the rest of the key on the physical token (something that could easily be destroyed).

greiskul 15y ago
This is called destruction of evidence, and is a crime.