4 ms·

Sure, those things might happen. None of those things happened in that Nebraska case though, so using it to as a specific example to support your claim feels a

Sure, those things might happen. None of those things happened in that Nebraska case though, so using it to as a specific example to support your claim feels a bit off. Especially considering the fact that the original comment omitted some pretty crucial details that end up painting the overall situation in a very different light.

pclmulqdq 4y ago
What happened in the Nebraska case was more subtly bad: if the government had to subpoena HER for her location data on that day, there would likely be no criminal conviction at all. The 5th amendment would be a valid excuse to avoid giving out the data. However, they only had to subpoena Facebook, whose data is not covered by 5th amendment protections, and who would like to maintain a friendly relationship with governments. EDIT: This is generally called the principal-agent problem, and there are lots of rules around agent behavior when it traditionally applies (eg attorney-client privilege and doctor-patient confidentiality). Also, you should note that there are lots of crimes, and you probably commit a lot of them. If you have ever used someone else's WiFi without permission, that's one. If you carried a screwdriver or a sharpie into a store, that's a separate crime. The list goes on and on.
- eurleif 4y ago
  The fifth amendment provides a right not to testify against yourself. It has little to do with documents, whether they are in your possession or someone else's. The fourth amendment is the one that applies there. If her phone were recording location data locally (or if she were keeping a paper diary of her location, for that matter), the government could have obtained that information with a search warrant, and it would have been perfectly admissible.
  - pclmulqdq 4y ago
    What you're saying is true only if the data is unencrypted or not password-protected. If the data is encrypted, the government would have to crack it (which is not usually possible with decent encryption and anything short of the NSA breathing down your neck). They could not just ask you for the password.
    - eurleif 4y ago
      The case law on compelled decryption is less clear-cut than you're describing. (Possible exceptions include: biometric, as opposed to password/passcode, encryption; and the government being able to prove that the defendant knows the password.) Moreover, even when the government can't obtain the decryption key from the defendant, cracking the encryption is not the only possibility. They could also seize the device while it is running, with the decryption key and/or decrypted data already in memory. That was done in the arrest of Ross Ulbricht, for example. Also, this is entirely different from your original claim, because it has nothing to do with where the encrypted data is stored. If you store encrypted data in the cloud, then the fifth amendment provides you with the same degree of protection from disclosing the decryption key as it would for locally-stored encrypted data.

pclmulqdq 4y ago

What happened in the Nebraska case was more subtly bad: if the government had to subpoena HER for her location data on that day, there would likely be no criminal conviction at all. The 5th amendment would be a valid excuse to avoid giving out the data. However, they only had to subpoena Facebook, whose data is not covered by 5th amendment protections, and who would like to maintain a friendly relationship with governments. EDIT: This is generally called the principal-agent problem, and there are lots of rules around agent behavior when it traditionally applies (eg attorney-client privilege and doctor-patient confidentiality). Also, you should note that there are lots of crimes, and you probably commit a lot of them. If you have ever used someone else's WiFi without permission, that's one. If you carried a screwdriver or a sharpie into a store, that's a separate crime. The list goes on and on.

eurleif 4y ago
The fifth amendment provides a right not to testify against yourself. It has little to do with documents, whether they are in your possession or someone else's. The fourth amendment is the one that applies there. If her phone were recording location data locally (or if she were keeping a paper diary of her location, for that matter), the government could have obtained that information with a search warrant, and it would have been perfectly admissible.
- pclmulqdq 4y ago
  What you're saying is true only if the data is unencrypted or not password-protected. If the data is encrypted, the government would have to crack it (which is not usually possible with decent encryption and anything short of the NSA breathing down your neck). They could not just ask you for the password.
  - eurleif 4y ago
    The case law on compelled decryption is less clear-cut than you're describing. (Possible exceptions include: biometric, as opposed to password/passcode, encryption; and the government being able to prove that the defendant knows the password.) Moreover, even when the government can't obtain the decryption key from the defendant, cracking the encryption is not the only possibility. They could also seize the device while it is running, with the decryption key and/or decrypted data already in memory. That was done in the arrest of Ross Ulbricht, for example. Also, this is entirely different from your original claim, because it has nothing to do with where the encrypted data is stored. If you store encrypted data in the cloud, then the fifth amendment provides you with the same degree of protection from disclosing the decryption key as it would for locally-stored encrypted data.