5 ms·

isnt the simple point of the 5th supposed to be more or,ess "you do cannot be compelled bylaw to help convict yourself)... ay law to the contrary would be uncon

by dedward 15y ago

isnt the simple point of the 5th supposed to be more or,ess "you do cannot be compelled bylaw to help convict yourself)... ay law to the contrary would be unconstitutional.

evgen 15y ago
No, the point of the 5th is that you cannot be compelled to give testimony against yourself (which is under oath and for which you will go to jail if you perjure yourself.) You are not protected from helping to convict yourself if you leave the evidence of your crimes available to the court. An encrypted drive is being considered as something like an un-crackable safe for which you have the combination; providing the password is not testifying, it is providing the court access to evidence that you would otherwise be concealing from a valid warrant.
- jangusa 15y ago
  Providing the password to a safe that contains incriminating documents actually is testimonial in nature because it requires you to disclose information you have in your mind (see above). As such, any information that the government obtains by compelling you to give them the password cannot be used against you in a criminal trial. The judge in the case being discussed here got it wrong, and his decision will be overturned on appeal if it goes up to the Supreme Court.
  - timdev2 15y ago
    But as the article mentioned: "Prosecutors in this case have stressed that they don't actually require the passphrase itself, and today's order appears to permit Fricosu to type it in and unlock the files without anyone looking over her shoulder." So the state is arguing that they're not demanding the password, only the plaintext. Still seems fishy, but it's not clear that it's testimonial. I suppose one could argue that it's more akin to a judge demanding that you produce the corpse the police have so far been unable to locate. Better still, as someone else said, it's like the police demanding that you translate notes you wrote down in your own made-up-and-known-only-to-you language.
    - jangusa 15y ago
      The production of decrypted plaintext by means of an encryption key stored in your mind falls squarely within the rule on production of documents from U.S. v. Hubbell, discussed in jpol's comment above. It therefore seems quite likely the state will lose on appeal.

by dedward 15y ago

isnt the simple point of the 5th supposed to be more or,ess "you do cannot be compelled bylaw to help convict yourself)... ay law to the contrary would be unconstitutional.

evgen 15y ago

No, the point of the 5th is that you cannot be compelled to give testimony against yourself (which is under oath and for which you will go to jail if you perjure yourself.) You are not protected from helping to convict yourself if you leave the evidence of your crimes available to the court. An encrypted drive is being considered as something like an un-crackable safe for which you have the combination; providing the password is not testifying, it is providing the court access to evidence that you would otherwise be concealing from a valid warrant.

jangusa 15y ago
Providing the password to a safe that contains incriminating documents actually is testimonial in nature because it requires you to disclose information you have in your mind (see above). As such, any information that the government obtains by compelling you to give them the password cannot be used against you in a criminal trial. The judge in the case being discussed here got it wrong, and his decision will be overturned on appeal if it goes up to the Supreme Court.
- timdev2 15y ago
  But as the article mentioned: "Prosecutors in this case have stressed that they don't actually require the passphrase itself, and today's order appears to permit Fricosu to type it in and unlock the files without anyone looking over her shoulder." So the state is arguing that they're not demanding the password, only the plaintext. Still seems fishy, but it's not clear that it's testimonial. I suppose one could argue that it's more akin to a judge demanding that you produce the corpse the police have so far been unable to locate. Better still, as someone else said, it's like the police demanding that you translate notes you wrote down in your own made-up-and-known-only-to-you language.
  - jangusa 15y ago
    The production of decrypted plaintext by means of an encryption key stored in your mind falls squarely within the rule on production of documents from U.S. v. Hubbell, discussed in jpol's comment above. It therefore seems quite likely the state will lose on appeal.