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I just want to point out that, with respect to Fifth Am. protection for passwords and keys, there are at least two District Court decisions suggesting that givi

by mikecb 12y ago

I just want to point out that, with respect to Fifth Am. protection for passwords and keys, there are at least two District Court decisions suggesting that giving up keys is non-testimonial, and one Circuit decision suggesting it is, so there may be a split on this issue sometime in the future that will end up at the Supreme Court.

mpyne 12y ago
Giving up keys about information otherwise already known to be on the computer is what's declared non-testimonial though. It would be like refusing to open a safe even though the cops have a video recording of every point in time from you putting a bloody knife in the safe to the present time; making you open the safe isn't what proves your association with the knife as the police already have that on video. How the courts interpret that kind of theory for computing will certainly be intriguing though.
- mikecb 12y ago
  |Giving up keys about information otherwise already known to be on the computer is what's declared non-testimonial though. That was true of In Re Boucher and to a similar extent US v Kirschner, but in US v. Fricosu, the agents had not seen the contents of the computer, as the defendant claimed she couldn't remember the password. Obviously PC still has to exist that the thing to be found will be found on the computer, but in Fiscosu it was.
IgorPartola 12y ago
I believe you are correct and the grandparent is not. The fifth protects you from being coerced into saying "I did the crime", but not from cooperating with court orders. By you uttering your passphrase, you are not incriminating itself (a wise guy in the crowd will as "What if my password is 'IDidIt!'?" In that case, as I understand it, the jury would be told to disregard the actual phrasing of the passphrase and look only at what the passphrase (really the decryption key) unlock. In other words, yes this is exactly like refusing to open a safe. The only difference is that with a safe, if you no longer have the key, the law enforcement agencies can attempt other methods of opening the safe. If you lose your encryption key, nobody can prove that you actually lost it and are not just trying to hide it. In this case, it seems the judge will simply say that you are in contempt of court and will lock you up until your memory improves (as in indefinitely).
- mikecb 12y ago
  Like I said somewhere else, some courts have agreed with this analysis, and others differed. Obviously each case is fact intensive, but I imagine we'll have many more discussions as more cases come forward, a circuit split emerges, and it is eventually considered by the Supreme Court.

by mikecb 12y ago

mpyne 12y ago

Giving up keys about information otherwise already known to be on the computer is what's declared non-testimonial though. It would be like refusing to open a safe even though the cops have a video recording of every point in time from you putting a bloody knife in the safe to the present time; making you open the safe isn't what proves your association with the knife as the police already have that on video. How the courts interpret that kind of theory for computing will certainly be intriguing though.

mikecb 12y ago
|Giving up keys about information otherwise already known to be on the computer is what's declared non-testimonial though. That was true of In Re Boucher and to a similar extent US v Kirschner, but in US v. Fricosu, the agents had not seen the contents of the computer, as the defendant claimed she couldn't remember the password. Obviously PC still has to exist that the thing to be found will be found on the computer, but in Fiscosu it was.

IgorPartola 12y ago

I believe you are correct and the grandparent is not. The fifth protects you from being coerced into saying "I did the crime", but not from cooperating with court orders. By you uttering your passphrase, you are not incriminating itself (a wise guy in the crowd will as "What if my password is 'IDidIt!'?" In that case, as I understand it, the jury would be told to disregard the actual phrasing of the passphrase and look only at what the passphrase (really the decryption key) unlock. In other words, yes this is exactly like refusing to open a safe. The only difference is that with a safe, if you no longer have the key, the law enforcement agencies can attempt other methods of opening the safe. If you lose your encryption key, nobody can prove that you actually lost it and are not just trying to hide it. In this case, it seems the judge will simply say that you are in contempt of court and will lock you up until your memory improves (as in indefinitely).

mikecb 12y ago
Like I said somewhere else, some courts have agreed with this analysis, and others differed. Obviously each case is fact intensive, but I imagine we'll have many more discussions as more cases come forward, a circuit split emerges, and it is eventually considered by the Supreme Court.