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I've always thought that a solution to the problems with insufficient 5th amendment protection would be to make your password a passphrase that contains an admi

by nirvana 15y ago

I've always thought that a solution to the problems with insufficient 5th amendment protection would be to make your password a passphrase that contains an admission of a crime. For instance: "I admit that I smoked marijuana on the 5th of December 2010". or "I under paid my taxes in 2005 by $50." These passphrases, as literal admissions of a crime, would have to be protected by the 5th amendment. Of course, that presumes that the legal system operates under the constraints of the bill of rights, a presumption I don't believe currently holds very often. (Neither of the example phrases given here are actually true about me. )

abalashov 15y ago
The problem with that is that the 5th Amendment, as specifically formulated, protects you from being compelled to give _testimony_ against yourself. The success of your strategy hinges on the idea that divulging the password is an act of a testimonial nature, and existing precedents have not gone that way. Testimony is a very particular kind of thing, rather narrowly circumscribed.
- nirvana 15y ago
  Could you be more specific? Under the 5th ammendment, you can refuse to talk to the police. If a judge orders you to reveal it, or be held in contempt of court, is that not a "Testimony"? And thus, wouldn't giving your passphrase literally be expressing a confession to a crime (presuming it was in the form of a confession)?
  - abalashov 15y ago
    The question is really about whether the content of the password itself can be entered into evidence, and in most cases, the answer is no, though it would, of course, depend on the scope of the search warrant (if that's the context in which it is being evaluated) and several other factors. But in practice, a password is understood to be something rather arbitrary, so it is not regarded as having strong evidentiary weight. Of all the things I can do, setting my password to "ikillednicolebrownsimpson" is least likely to implicate me, even with a great deal of related supporting evidence. Secondly, they can get around this quite easily by telling you to just type it in without disclosing it to them. Your refusal to comply will be regarded the same way as a refusal to open a safe or something similar, and you can be held (indefinitely, in many jurisdictions) for contempt of court. The difference, of course, is that the police can open a safe if they have to. The 5th amendment does not release you from an obligation to cooperate with police, though, as you rightly point out, you are not required to disclose evidence to them or to aid their investigation apart from complying with their request to look around. To what extent divulging a password or passphrase enters into this scope is a matter of ongoing court battles. They have gone both ways.
  - abalashov 15y ago
    On the other hand, by admitting that you have knowledge of the passphrase, you may be associating yourself with a piece of machinery or its contents more conclusively than would otherwise be possible to prove, which may be a non-trivial piece of information in itself. That, in turn, may be covered by 5th amendment protections.
hugh3 15y ago
Full marks for lateral thinking, but I don't think that works. It's the use-mention distinction. Uttering a set of words is not the same thing as asserting that they're true. If you say "My password is 'I killed and ate a young girl in Tucson'" then that does not count as a confession, and could not be taken as one by any court (thankfully, because I just typed out that sentence myself...). Therefore, uttering that sentence does not count as testifying against yourself.
- nirvana 15y ago
  I'm presuming that they are true, and that they are a revelation of an actual crime that you committed. Thus, by revealing the passphrase, you are revealing evidence about yourself, and effectively testifying against yourself. I believe you'd have to be under oath as well. Further, I believe that this strategy would be employed as an argument to not ever giving up the passphrase. You would tell the judge, or whomever, that the phrase is a literal confession of a crime, and thus, by doing so, invoke 5th amendment protection. (You may be right, and my idea may not work. I just want to make sure you're not assuming that the confession is for a false crime, when I meant it to be for a real one (though my examples of course, are false.) Which is why I didn't use a murder as an example...)
  - hugh3 15y ago
    Further, I believe that this strategy would be employed as an argument to not ever giving up the passphrase. You would tell the judge, or whomever, that the phrase is a literal confession of a crime, and thus, by doing so, invoke 5th amendment protection. I'm not assuming the confession is for a false crime, but nonetheless uttering the phrase "my password is $string' where $string is a true confession is still not a confession. In your strategy, there are two parts to your confession: 1. The information that your password is the string "$s", and 2. Your volunteering of the information to the judge that the strong $s is in fact a confession of a real crime which you did in fact commit. Part 1 is not testifying against yourself, unless in conjunction with part 2. Since you voluntarily threw Part 2 into the discussion, you're voluntarily testifying against yourself, and there's no rule against that. A physical equivalent to your strategy would be to write out a letter of confession, leave it in your basement, and tell the police that the existence of this letter means they're not allowed to search your basement. It's not gonna work.
biot 15y ago
If you tried to use that as a defense, you would likely have the court grant you immunity from using the contents of your passphrase as evidence of having committed a crime and that it would only be treated as a random string. However, that then puts you in the awkward situation where you're admitting that the passphrase is an actual criminal admission and you might end up being "randomly" selected for an investigation along those lines to find evidence to independently corroborate the criminal act.
deleted 15y ago
[deleted]
etherael 15y ago
Why bother with the legal trickery? Jump straight to the conclusion that the legal system is a hostile entity, as it actually truly is in many places in the world, and act accordingly. There are encryption methods to prevent key extraction under duress available and have been for some time. Let's not go thinking that the government actually has any power in this particular instance.
- tedunangst 15y ago
  Actually, they probably have quite a bit of power. They have whatever evidence led to the warrant in the first place. If they don't find something they know you have, they'll know you have given them the wrong password. If your browser history is three months old and contains nothing but chocolate chip cookie recipes, they'll know you have given them the wrong password. I don't know what happens next, but I doubt they'll say "oh, that was sneaky" and let you go. When Reiser was asked to explain why he hosed out his car and said "everybody loves a clean car", the jury was not particularly impressed.
  - etherael 15y ago
    This amounts to nothing more than suspicion. When we get to the point where their failure to find the incriminating evidence they were searching for is evidence of your guilt, we're by nature already at the point that that evidence was never required anyway, and we're just in a fascist dystopian reality. Exercise to the reader to ascertain if this has already come to pass.
  - koenigdavidmj 15y ago
    That's not how you are supposed to use (e.g.) TrueCrypt. Your dummy passphrase, without the incriminating data, should be the one that you use for all legitimate business. If you have multiple dummies, be sure to have something embarrassing, but not incriminating, in the other dummies.

by nirvana 15y ago

abalashov 15y ago

The problem with that is that the 5th Amendment, as specifically formulated, protects you from being compelled to give _testimony_ against yourself. The success of your strategy hinges on the idea that divulging the password is an act of a testimonial nature, and existing precedents have not gone that way. Testimony is a very particular kind of thing, rather narrowly circumscribed.

nirvana 15y ago
Could you be more specific? Under the 5th ammendment, you can refuse to talk to the police. If a judge orders you to reveal it, or be held in contempt of court, is that not a "Testimony"? And thus, wouldn't giving your passphrase literally be expressing a confession to a crime (presuming it was in the form of a confession)?
- abalashov 15y ago
  The question is really about whether the content of the password itself can be entered into evidence, and in most cases, the answer is no, though it would, of course, depend on the scope of the search warrant (if that's the context in which it is being evaluated) and several other factors. But in practice, a password is understood to be something rather arbitrary, so it is not regarded as having strong evidentiary weight. Of all the things I can do, setting my password to "ikillednicolebrownsimpson" is least likely to implicate me, even with a great deal of related supporting evidence. Secondly, they can get around this quite easily by telling you to just type it in without disclosing it to them. Your refusal to comply will be regarded the same way as a refusal to open a safe or something similar, and you can be held (indefinitely, in many jurisdictions) for contempt of court. The difference, of course, is that the police can open a safe if they have to. The 5th amendment does not release you from an obligation to cooperate with police, though, as you rightly point out, you are not required to disclose evidence to them or to aid their investigation apart from complying with their request to look around. To what extent divulging a password or passphrase enters into this scope is a matter of ongoing court battles. They have gone both ways.
- abalashov 15y ago
  On the other hand, by admitting that you have knowledge of the passphrase, you may be associating yourself with a piece of machinery or its contents more conclusively than would otherwise be possible to prove, which may be a non-trivial piece of information in itself. That, in turn, may be covered by 5th amendment protections.

hugh3 15y ago

Full marks for lateral thinking, but I don't think that works. It's the use-mention distinction. Uttering a set of words is not the same thing as asserting that they're true. If you say "My password is 'I killed and ate a young girl in Tucson'" then that does not count as a confession, and could not be taken as one by any court (thankfully, because I just typed out that sentence myself...). Therefore, uttering that sentence does not count as testifying against yourself.

nirvana 15y ago
I'm presuming that they are true, and that they are a revelation of an actual crime that you committed. Thus, by revealing the passphrase, you are revealing evidence about yourself, and effectively testifying against yourself. I believe you'd have to be under oath as well. Further, I believe that this strategy would be employed as an argument to not ever giving up the passphrase. You would tell the judge, or whomever, that the phrase is a literal confession of a crime, and thus, by doing so, invoke 5th amendment protection. (You may be right, and my idea may not work. I just want to make sure you're not assuming that the confession is for a false crime, when I meant it to be for a real one (though my examples of course, are false.) Which is why I didn't use a murder as an example...)
- hugh3 15y ago
  Further, I believe that this strategy would be employed as an argument to not ever giving up the passphrase. You would tell the judge, or whomever, that the phrase is a literal confession of a crime, and thus, by doing so, invoke 5th amendment protection. I'm not assuming the confession is for a false crime, but nonetheless uttering the phrase "my password is $string' where $string is a true confession is still not a confession. In your strategy, there are two parts to your confession: 1. The information that your password is the string "$s", and 2. Your volunteering of the information to the judge that the strong $s is in fact a confession of a real crime which you did in fact commit. Part 1 is not testifying against yourself, unless in conjunction with part 2. Since you voluntarily threw Part 2 into the discussion, you're voluntarily testifying against yourself, and there's no rule against that. A physical equivalent to your strategy would be to write out a letter of confession, leave it in your basement, and tell the police that the existence of this letter means they're not allowed to search your basement. It's not gonna work.

biot 15y ago

If you tried to use that as a defense, you would likely have the court grant you immunity from using the contents of your passphrase as evidence of having committed a crime and that it would only be treated as a random string. However, that then puts you in the awkward situation where you're admitting that the passphrase is an actual criminal admission and you might end up being "randomly" selected for an investigation along those lines to find evidence to independently corroborate the criminal act.

deleted 15y ago

[deleted]

etherael 15y ago

Why bother with the legal trickery? Jump straight to the conclusion that the legal system is a hostile entity, as it actually truly is in many places in the world, and act accordingly. There are encryption methods to prevent key extraction under duress available and have been for some time. Let's not go thinking that the government actually has any power in this particular instance.

tedunangst 15y ago
Actually, they probably have quite a bit of power. They have whatever evidence led to the warrant in the first place. If they don't find something they know you have, they'll know you have given them the wrong password. If your browser history is three months old and contains nothing but chocolate chip cookie recipes, they'll know you have given them the wrong password. I don't know what happens next, but I doubt they'll say "oh, that was sneaky" and let you go. When Reiser was asked to explain why he hosed out his car and said "everybody loves a clean car", the jury was not particularly impressed.
- etherael 15y ago
  This amounts to nothing more than suspicion. When we get to the point where their failure to find the incriminating evidence they were searching for is evidence of your guilt, we're by nature already at the point that that evidence was never required anyway, and we're just in a fascist dystopian reality. Exercise to the reader to ascertain if this has already come to pass.
- koenigdavidmj 15y ago
  That's not how you are supposed to use (e.g.) TrueCrypt. Your dummy passphrase, without the incriminating data, should be the one that you use for all legitimate business. If you have multiple dummies, be sure to have something embarrassing, but not incriminating, in the other dummies.