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My understanding of existing case law regarding safes is that you can be compelled to give up a key, as it is just physical property to which the state has righ

My understanding of existing case law regarding safes is that you can be compelled to give up a key, as it is just physical property to which the state has right to request, but can not be compelled to give a combination, as that is just memory and would violate the fifth amendment. Just because cryptographers use the term "key" doesn't mean the should be treated as real keys. It seems obvious that a key/paraphrase is perfectly analogous to a safe combination.

IgorPartola 15y ago
You don't have to give up a key. They would be asking you to decrypt the drive. Whether that requires you to enter a passphrase or turn on the webcam and do a jig, it doesn't matter. They have no interest in your key/password/secret 4 digit code. They want the contents of the drive. Now they could be playing at a disadvantage, but the point is that the 5th amendment does not enter into here. If the police have a warrant for papers in your safe, they simply ask you to open the safe, by whatever means. This is no different when they have a warrant for files (papers, information) on your encrypted drive (safe) and are asking you to open it by whatever means.
- sdkmvx 15y ago
  > This is no different when they have a warrant for files (papers, information) on your encrypted drive (safe) and are asking you to open it by whatever means. This seems acceptable if they have a warrant for the contents of your safe. If they had a warrant for "evidence" and no knowledge or reason to believe that it was in the safe, could they open it/force you to open it simply because you own the safe. Similarly, if you had a hard drive, could they force decryption without knowing how the contents relate to the case. Another issue that comes to mind is what happens if a hard drive containing truly random data is found, but the state thinks it contains encrypted data. Could someone be held in contempt for not releasing the (nonexistant) keys. This is probably related to the problem of destroyed keys.
  - jpol 15y ago
    Criminal contempt would have to be proven beyond a reasonable doubt, and the elements of proving the defendant's failure to provide the encryption key would include (1) showing that the key exists and (2) showing that they key is in the defendant's possession.
    - IgorPartola 15y ago
      One example would be a witness sees you enter your passphrase and unlock your system, no?
      - gte910h 15y ago
        You mean a witness testifies they saw you unlock a system that looks a bit like the one they are seeing in front of them at trial? Witness testimony is incredibly unreliable in practice, but courts LOVE that crap. So someone basically could get locked away in contempt forever because someone thinks they saw you unlock a system you can't actually unlock...
- jpol 15y ago
  Shorter Version: It does not matter whether the government forces you to do something (e.g. open a combination lock), as opposed to providing information (e.g. tell them the combination). The deciding factor is whether there is an invasion of your mental privacy inherent in the government compulsion. Whether you disclose the combination or open the lock yourself, the contents of your mind are being used to incriminate you, so your Fifth Amendment rights are being violated. This is distinct from the government demanding the key to a safe, or even taking a blood sample from you against your will, both of which are purely physical impositions. === Longer Version: If the police have a warrant to search your documents, that does not mean that they can make you provide the documents to them. They can look through your stuff to find the documents, but if the police cannot read them, that is their problem. However, a grand jury can subpoena documents from you, in which case you will be compelled to provide them. In this case, you can invoke the Fifth Amendment privilege against testimonial self incrimination as it relates to the production of documents. To the extent that the act of producing the documents requires you to use the contents of your mind, the act of production cannot be used to incriminate you. So, on one hand, your Fifth Amendment right will not protect you if the police already know that the documents exist and all of the information that is contained in them. However, if the police do not know exactly what documents they are looking for and what the documents say, then the information found in the documents cannot be used against you in court, nor can it be used to find other incriminating information. See U.S. v. Hubbell, 530 U.S. 27 (Supreme Court case from 2000) http://supreme.justia.com/cases/federal/us/530/27/case.html http://supreme.justia.com/cases/federal/us/530/27/case.html
  - IgorPartola 15y ago
    In other words if my password is "I am guilty" I can invoke the 5th and tell the grand jury that I will not tell them my password. However, when the grand jury says "produce the crooked accounting books we know you have (witnesses have testified that you have them) that are stores on your laptop", am I required to somehow produce them or do I just say "nope, not going to happen." In the latter case, if those books are the difference between an acquittal and a conviction, do they just let you go, or do they hold you in contempt until you give in? Lastly, what is the difference between using the contents of my mind when entering a password vs telling the police where I left the key to my safe? Very lastly, just do not talk to anyone ever: http://www.youtube.com/watch?v=6wXkI4t7nuc http://www.youtube.com/watch?v=6wXkI4t7nuc

IgorPartola 15y ago

You don't have to give up a key. They would be asking you to decrypt the drive. Whether that requires you to enter a passphrase or turn on the webcam and do a jig, it doesn't matter. They have no interest in your key/password/secret 4 digit code. They want the contents of the drive. Now they could be playing at a disadvantage, but the point is that the 5th amendment does not enter into here. If the police have a warrant for papers in your safe, they simply ask you to open the safe, by whatever means. This is no different when they have a warrant for files (papers, information) on your encrypted drive (safe) and are asking you to open it by whatever means.

sdkmvx 15y ago
> This is no different when they have a warrant for files (papers, information) on your encrypted drive (safe) and are asking you to open it by whatever means. This seems acceptable if they have a warrant for the contents of your safe. If they had a warrant for "evidence" and no knowledge or reason to believe that it was in the safe, could they open it/force you to open it simply because you own the safe. Similarly, if you had a hard drive, could they force decryption without knowing how the contents relate to the case. Another issue that comes to mind is what happens if a hard drive containing truly random data is found, but the state thinks it contains encrypted data. Could someone be held in contempt for not releasing the (nonexistant) keys. This is probably related to the problem of destroyed keys.
- jpol 15y ago
  Criminal contempt would have to be proven beyond a reasonable doubt, and the elements of proving the defendant's failure to provide the encryption key would include (1) showing that the key exists and (2) showing that they key is in the defendant's possession.
  - IgorPartola 15y ago
    One example would be a witness sees you enter your passphrase and unlock your system, no?
    - gte910h 15y ago
      You mean a witness testifies they saw you unlock a system that looks a bit like the one they are seeing in front of them at trial? Witness testimony is incredibly unreliable in practice, but courts LOVE that crap. So someone basically could get locked away in contempt forever because someone thinks they saw you unlock a system you can't actually unlock...
jpol 15y ago
Shorter Version: It does not matter whether the government forces you to do something (e.g. open a combination lock), as opposed to providing information (e.g. tell them the combination). The deciding factor is whether there is an invasion of your mental privacy inherent in the government compulsion. Whether you disclose the combination or open the lock yourself, the contents of your mind are being used to incriminate you, so your Fifth Amendment rights are being violated. This is distinct from the government demanding the key to a safe, or even taking a blood sample from you against your will, both of which are purely physical impositions. === Longer Version: If the police have a warrant to search your documents, that does not mean that they can make you provide the documents to them. They can look through your stuff to find the documents, but if the police cannot read them, that is their problem. However, a grand jury can subpoena documents from you, in which case you will be compelled to provide them. In this case, you can invoke the Fifth Amendment privilege against testimonial self incrimination as it relates to the production of documents. To the extent that the act of producing the documents requires you to use the contents of your mind, the act of production cannot be used to incriminate you. So, on one hand, your Fifth Amendment right will not protect you if the police already know that the documents exist and all of the information that is contained in them. However, if the police do not know exactly what documents they are looking for and what the documents say, then the information found in the documents cannot be used against you in court, nor can it be used to find other incriminating information. See U.S. v. Hubbell, 530 U.S. 27 (Supreme Court case from 2000) http://supreme.justia.com/cases/federal/us/530/27/case.html http://supreme.justia.com/cases/federal/us/530/27/case.html
- IgorPartola 15y ago
  In other words if my password is "I am guilty" I can invoke the 5th and tell the grand jury that I will not tell them my password. However, when the grand jury says "produce the crooked accounting books we know you have (witnesses have testified that you have them) that are stores on your laptop", am I required to somehow produce them or do I just say "nope, not going to happen." In the latter case, if those books are the difference between an acquittal and a conviction, do they just let you go, or do they hold you in contempt until you give in? Lastly, what is the difference between using the contents of my mind when entering a password vs telling the police where I left the key to my safe? Very lastly, just do not talk to anyone ever: http://www.youtube.com/watch?v=6wXkI4t7nuc http://www.youtube.com/watch?v=6wXkI4t7nuc