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> But they don't have the right to extract something from your brain. sure they do if, unless you want to be held in contempt of court for not providing the in

by wayeq 2y ago

> But they don't have the right to extract something from your brain. sure they do if, unless you want to be held in contempt of court for not providing the information.

echoangle 2y ago
Don’t you have a right to not incriminate yourself? You only have to give them information as long as you’re not incriminating yourself, right?
- saulrh 2y ago
  Historically, US courts have declared that giving a password is proof that you control the given asset and that this can be incriminating. In practice, juries will take a refusal to divulge a password as evidence of guilt, the cops will use it as an excuse for even greater brutality, the FBI is perfectly willing to hold you without trial for years on end, and in most cases they don't need it anyway because everything lives on someone else's computer and they're perfectly willing to hand your data over if they haven't already. Furthermore, because the defense is founded on the principle that the password serves as evidence that you owned the encrypted data, if the prosecution is able to prove that you owned the encrypted data in any other way, that protection goes away. > In Boucher, production of the unencrypted > drive was deemed not to be a self-incriminating > act, as the government already had > sufficient evidence to tie the encrypted > data to the defendant I am, of course, not a lawyer. I'm just summarizing easily available information, i.e. wikipedia.
orthecreedence 2y ago
You cannot be compelled (in US court, anyway) to give up encryption passwords/keys. You can certainly be compelled in a black site torture den, but most people don't have that as a looming threat yet.
- HeatrayEnjoyer 2y ago
  > You cannot be compelled (in US court, anyway) to give up encryption passwords/keys. Multiple people have been held in contempt for refusing to provide an encryption password by US courts.
  - echoangle 2y ago
    [citation needed], can you give a link? In a court case about their own crimes?
    - deleted 2y ago
      [deleted]
  - orthecreedence 2y ago
    Maybe it's slightly more nuanced than I thought. This (https://crsreports.congress.gov/product/pdf/LSB/LSB10416 https://crsreports.congress.gov/product/pdf/LSB/LSB10416) seems to be an interesting report on the issue, although in most cases a defendant cannot be compelled to unlock their password-protected device. Biometrics might be different, but honestly, don't use a fucking fingerprint unlock if you've got "sensitive shit" on your device. Duh...
dpifke 2y ago
In the U.S., this is a still-evolving area of law, which has been raised before the Supreme Court: https://www.supremecourt.gov/DocketPDF/23/23-1020/302999/20240313155627989_2024-03-13%20UT%20v.%20Valdez%20Petition%20for%20Writ%20of%20Certiorari%20Final.pdf https://www.supremecourt.gov/DocketPDF/23/23-1020/302999/202... The State of Utah instructed the jury in State vs. Valdez to infer that a suspect was guilty because he refused to provide his password to the police. On appeal, the Utah Supreme Court ruled that he had the right to withhold his password according to the 5th Amendment, and he shouldn't face negative consequences for doing so. The state appealed that ruling to the U.S. Supreme Court, citing various other state and Federal courts which have made conflicting rulings on this same issue. Sixteen states (Indiana, Alabama, Alaska, Delaware, Iowa, Kansas, Louisiana, Maine, Michigan, Mississippi, Nebraska, North Dakota, Ohio, Oregon, South Carolina, South Dakota, and Texas) just filed a motion asking the Court to hear the case: https://www.supremecourt.gov/DocketPDF/23/23-1020/307804/20240417142214084_Brief%20of%20Indiana%20and%2016%20Other%20States%20as%20Amici%20Curiae%20ISO%20Petitioner.pdf https://www.supremecourt.gov/DocketPDF/23/23-1020/307804/202... Quoting that brief: "[C]ourts have issued orders requiring persons to unlock devices or provide passcodes. But courts across the country are divided as to whether the Fifth Amendment bars such orders. [...] The Court should grant certiorari to provide guidance on how the Fifth Amendment’s guarantee against self-incrimination applies in the modern context of electronic devices." The Court has yet to decide if they'll hear arguments: https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/23-1020.html https://www.supremecourt.gov/search.aspx?filename=/docket/do... More info/commentary here: https://reason.com/volokh/2023/12/14/is-compelled-decryption-heading-to-the-supreme-court/ https://reason.com/volokh/2023/12/14/is-compelled-decryption... (But I recommend going directly to the primary source material—legal documents in Supreme Court cases are very accessible, even to non-lawyers.)

by wayeq 2y ago

> But they don't have the right to extract something from your brain. sure they do if, unless you want to be held in contempt of court for not providing the information.

echoangle 2y ago

Don’t you have a right to not incriminate yourself? You only have to give them information as long as you’re not incriminating yourself, right?

saulrh 2y ago
Historically, US courts have declared that giving a password is proof that you control the given asset and that this can be incriminating. In practice, juries will take a refusal to divulge a password as evidence of guilt, the cops will use it as an excuse for even greater brutality, the FBI is perfectly willing to hold you without trial for years on end, and in most cases they don't need it anyway because everything lives on someone else's computer and they're perfectly willing to hand your data over if they haven't already. Furthermore, because the defense is founded on the principle that the password serves as evidence that you owned the encrypted data, if the prosecution is able to prove that you owned the encrypted data in any other way, that protection goes away. > In Boucher, production of the unencrypted > drive was deemed not to be a self-incriminating > act, as the government already had > sufficient evidence to tie the encrypted > data to the defendant I am, of course, not a lawyer. I'm just summarizing easily available information, i.e. wikipedia.

orthecreedence 2y ago

You cannot be compelled (in US court, anyway) to give up encryption passwords/keys. You can certainly be compelled in a black site torture den, but most people don't have that as a looming threat yet.

HeatrayEnjoyer 2y ago
> You cannot be compelled (in US court, anyway) to give up encryption passwords/keys. Multiple people have been held in contempt for refusing to provide an encryption password by US courts.
- echoangle 2y ago
  [citation needed], can you give a link? In a court case about their own crimes?
  - deleted 2y ago
    [deleted]
- orthecreedence 2y ago
  Maybe it's slightly more nuanced than I thought. This (https://crsreports.congress.gov/product/pdf/LSB/LSB10416 https://crsreports.congress.gov/product/pdf/LSB/LSB10416) seems to be an interesting report on the issue, although in most cases a defendant cannot be compelled to unlock their password-protected device. Biometrics might be different, but honestly, don't use a fucking fingerprint unlock if you've got "sensitive shit" on your device. Duh...

dpifke 2y ago

In the U.S., this is a still-evolving area of law, which has been raised before the Supreme Court: https://www.supremecourt.gov/DocketPDF/23/23-1020/302999/20240313155627989_2024-03-13%20UT%20v.%20Valdez%20Petition%20for%20Writ%20of%20Certiorari%20Final.pdf https://www.supremecourt.gov/DocketPDF/23/23-1020/302999/202... The State of Utah instructed the jury in State vs. Valdez to infer that a suspect was guilty because he refused to provide his password to the police. On appeal, the Utah Supreme Court ruled that he had the right to withhold his password according to the 5th Amendment, and he shouldn't face negative consequences for doing so. The state appealed that ruling to the U.S. Supreme Court, citing various other state and Federal courts which have made conflicting rulings on this same issue. Sixteen states (Indiana, Alabama, Alaska, Delaware, Iowa, Kansas, Louisiana, Maine, Michigan, Mississippi, Nebraska, North Dakota, Ohio, Oregon, South Carolina, South Dakota, and Texas) just filed a motion asking the Court to hear the case: https://www.supremecourt.gov/DocketPDF/23/23-1020/307804/20240417142214084_Brief%20of%20Indiana%20and%2016%20Other%20States%20as%20Amici%20Curiae%20ISO%20Petitioner.pdf https://www.supremecourt.gov/DocketPDF/23/23-1020/307804/202... Quoting that brief: "[C]ourts have issued orders requiring persons to unlock devices or provide passcodes. But courts across the country are divided as to whether the Fifth Amendment bars such orders. [...] The Court should grant certiorari to provide guidance on how the Fifth Amendment’s guarantee against self-incrimination applies in the modern context of electronic devices." The Court has yet to decide if they'll hear arguments: https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/23-1020.html https://www.supremecourt.gov/search.aspx?filename=/docket/do... More info/commentary here: https://reason.com/volokh/2023/12/14/is-compelled-decryption-heading-to-the-supreme-court/ https://reason.com/volokh/2023/12/14/is-compelled-decryption... (But I recommend going directly to the primary source material—legal documents in Supreme Court cases are very accessible, even to non-lawyers.)