[PCWorld]

Post your comments for Order to Decrypt Laptop Does Not Violate Defendant's Fifth Amendment, Judge Rules here

[kronoscornelius]

With a warrant, the police should be able to break the encryption. But I think the 5th protects passwords. Anything that could comes out of the defendants mouth is protected IMO. This should go to the supreme court. Not that they are any good at making decisions either (i.e. corporations are people and money = free speech)

[Keinichn]

kronoscornelius, on 25 January 2012 - 03:14 PM, said:

With a warrant, the police should be able to break the encryption. But I think the 5th protects passwords. Anything that could comes out of the defendants mouth is protected IMO. This should go to the supreme court. Not that they are any good at making decisions either (i.e. corporations are people and money = free speech)

Actually, if she was dumb enough to talk about the laptop on in-jail phone calls and a warrant is retrieved for that information, the 5th doesn't apply here. It becomes reasonable suspicion and a warrant would allow for the seizure of the device and the contents.

[Yargs]

Assuming that the laptop contains potentially incriminating evidence against Ms. Fricosu, her fifth-amendment claim seems pretty strong to me.

My constitutional law professor (who later became a judge on the Fifth Circuit Court of Appeals) used to tell his students that pleading the fifth amendment amounted to the defendant's saying to the prosecution, "You think I did such-and-such? Prove it. I'm not going to help you."

Here, in essence, Ms. Fricosu is saying to the prosecution, "You think there's incriminating evidence on my laptop drive? You decrypt it. I'm not going to help you."

Not requiring criminal defendants to assist in their own prosecution has been a cornerstone of U.S. law for centuries. It'll be interested to see how this case plays out on appeal.

[halpo]

The right to remain silent should also apply to fingers typing on a keyboard. Seizing the laptop and breaking the encryption would be the only legally viable option. IMHO it would be better to be in contempt of court than turn over your passwords.

If the police charged her without this evidence thinking that they could get her to turn it over, that's their mistake.

[linuxrants7xpg]

halpo, on 26 January 2012 - 08:52 AM, said:

The right to remain silent should also apply to fingers typing on a keyboard. Seizing the laptop and breaking the encryption would be the only legally viable option. IMHO it would be better to be in contempt of court than turn over your passwords.

If the police charged her without this evidence thinking that they could get her to turn it over, that's their mistake.

It's my understanding that the Fifth Amendment does not just cover the right to remain silent, but protects witnesses from being forced to incriminate themselves. Forcing this particular individual to decrypt her laptop could very well do exactly that. While I'll concede that the Judge is probably a better authority, I think this decision was wrong, and will probably be overturned if/when appealed.

[rthrelkeld]

Keinichn, on 25 January 2012 - 03:22 PM, said:

kronoscornelius, on 25 January 2012 - 03:14 PM, said:

With a warrant, the police should be able to break the encryption. But I think the 5th protects passwords. Anything that could comes out of the defendants mouth is protected IMO. This should go to the supreme court. Not that they are any good at making decisions either (i.e. corporations are people and money = free speech)

Actually, if she was dumb enough to talk about the laptop on in-jail phone calls and a warrant is retrieved for that information, the 5th doesn't apply here. It becomes reasonable suspicion and a warrant would allow for the seizure of the device and the contents.

They can have the device and its contents as they are when they exercise the warrant. They are not entitled to information in the mind of the defendant (e.g. a decryption password). BTW, I thought the phone calls would be protected. I guess only to/from her attorney?

[Yargs]

rthrelkeld, on 26 January 2012 - 10:14 AM, said:

Keinichn, on 25 January 2012 - 03:22 PM, said:

kronoscornelius, on 25 January 2012 - 03:14 PM, said:

With a warrant, the police should be able to break the encryption. But I think the 5th protects passwords. Anything that could comes out of the defendants mouth is protected IMO. This should go to the supreme court. Not that they are any good at making decisions either (i.e. corporations are people and money = free speech)

Actually, if she was dumb enough to talk about the laptop on in-jail phone calls and a warrant is retrieved for that information, the 5th doesn't apply here. It becomes reasonable suspicion and a warrant would allow for the seizure of the device and the contents.

They can have the device and its contents as they are when they exercise the warrant. They are not entitled to information in the mind of the defendant (e.g. a decryption password). BTW, I thought the phone calls would be protected. I guess only to/from her attorney?

Phone calls from jail or prison are most definitely not protected from monitoring by authorities. In part that's because prisoners have a severely diminished right to and expectation of privacy while incarcerated, and in part it's a constitutionally legitimate policy to prevent people under arrest from issuing instructions to cohorts or underlings to carry out further illegal acts.

I'm not sure whether phone calls to lawyers are immune from monitoring, but I certainly wouldn't want a client to discuss his or her case with me over a prison phone. We recently had a case in the news in Oakland (California) where a lawyer smuggled instructions from a prisoner to his associates to destroy evidence; presumably if she could have spoken in private by phone with the prisoner under attorney-client privilege, the lawyer could simply have typed out the instructions from the comfort of her own home and not left a trail connecting her to the prisoner's felonious effort to destroy evidence. The story is here: http://www.chaunceyb...ling-documents/

[michael1213]

Yargs, on 26 January 2012 - 12:22 PM, said:

rthrelkeld, on 26 January 2012 - 10:14 AM, said:

Keinichn, on 25 January 2012 - 03:22 PM, said:

kronoscornelius, on 25 January 2012 - 03:14 PM, said:

With a warrant, the police should be able to break the encryption. But I think the 5th protects passwords. Anything that could comes out of the defendants mouth is protected IMO. This should go to the supreme court. Not that they are any good at making decisions either (i.e. corporations are people and money = free speech)

Actually, if she was dumb enough to talk about the laptop on in-jail phone calls and a warrant is retrieved for that information, the 5th doesn't apply here. It becomes reasonable suspicion and a warrant would allow for the seizure of the device and the contents.

They can have the device and its contents as they are when they exercise the warrant. They are not entitled to information in the mind of the defendant (e.g. a decryption password). BTW, I thought the phone calls would be protected. I guess only to/from her attorney?

Phone calls from jail or prison are most definitely not protected from monitoring by authorities. In part that's because prisoners have a severely diminished right to and expectation of privacy while incarcerated, and in part it's a constitutionally legitimate policy to prevent people under arrest from issuing instructions to cohorts or underlings to carry out further illegal acts.

I'm not sure whether phone calls to lawyers are immune from monitoring, but I certainly wouldn't want a client to discuss his or her case with me over a prison phone. We recently had a case in the news in Oakland (California) where a lawyer smuggled instructions from a prisoner to his associates to destroy evidence; presumably if she could have spoken in private by phone with the prisoner under attorney-client privilege, the lawyer could simply have typed out the instructions from the comfort of her own home and not left a trail connecting her to the prisoner's felonious effort to destroy evidence. The story is here: http://www.chaunceyb...ling-documents/

It kind of goes without saying but attorney client privilege applies to past actions and not to future crimes. Past actions are required otherwise the client couldn't be open and honest with the attorney and thus provide for his own best defense. Future simply makes the attorney party to a crime and therefore no privilege for that.

[JimH443]

There are several precedents set where your own diary can be used against you. Having it locked away in a safe deposit box doesn't change this. Same goes here. Once a thought leaves your brain, it' fair game for law enforcement.

In other words, if you don't want anyone else to know, keep it to - and within - yourself.

[linuxrants7xpg]

JimH443, on 27 January 2012 - 01:00 AM, said:

There are several precedents set where your own diary can be used against you. Having it locked away in a safe deposit box doesn't change this. Same goes here. Once a thought leaves your brain, it' fair game for law enforcement.

In other words, if you don't want anyone else to know, keep it to - and within - yourself.

Like the required passwords to decrypt an encrypted laptop? If it's in her brain, she shouldn't have to provide it, and especially if it's used to acquire incriminating evidence.

[JimH443]

linuxrants7xpg, on 27 January 2012 - 09:20 AM, said:

JimH443, on 27 January 2012 - 01:00 AM, said:

There are several precedents set where your own diary can be used against you. Having it locked away in a safe deposit box doesn't change this. Same goes here. Once a thought leaves your brain, it' fair game for law enforcement.

In other words, if you don't want anyone else to know, keep it to - and within - yourself.

Like the required passwords to decrypt an encrypted laptop? If it's in her brain, she shouldn't have to provide it, and especially if it's used to acquire incriminating evidence.

It doesn't matter how it's locked away or where it's locked away. It's now fair game.

[linuxrants7xpg]

JimH443, on 27 January 2012 - 09:28 AM, said:

linuxrants7xpg, on 27 January 2012 - 09:20 AM, said:

JimH443, on 27 January 2012 - 01:00 AM, said:

There are several precedents set where your own diary can be used against you. Having it locked away in a safe deposit box doesn't change this. Same goes here. Once a thought leaves your brain, it' fair game for law enforcement.

In other words, if you don't want anyone else to know, keep it to - and within - yourself.

Like the required passwords to decrypt an encrypted laptop? If it's in her brain, she shouldn't have to provide it, and especially if it's used to acquire incriminating evidence.

It doesn't matter how it's locked away or where it's locked away. It's now fair game.

Why should she have to provide the key to the locks? If they're able to get it themselves, sure, it's fair game. Why should she have to provide anything to that might be used to incriminate her?

[JimH443]

linuxrants7xpg, on 27 January 2012 - 09:40 AM, said:

JimH443, on 27 January 2012 - 09:28 AM, said:

It doesn't matter how it's locked away or where it's locked away. It's now fair game.

Why should she have to provide the key to the locks? If they're able to get it themselves, sure, it's fair game. Why should she have to provide anything to that might be used to incriminate her?

Simply put... the courts have pretty much decided that the 5th Amendment applies only to verbal testimony given inside a courtroom. Diaries and blood samples, although they do come from you, do not require your cooperation / permission and can be used against you. I doubt that the courts will view computers any differently than these.

[linuxrants7xpg]

JimH443, on 27 January 2012 - 10:29 AM, said:

Simply put... the courts have pretty much decided that the 5th Amendment applies only to verbal testimony given inside a courtroom. Diaries and blood samples, although they do come from you, do not require your cooperation / permission and can be used against you. I doubt that the courts will view computers any differently than these.

And I said before, I think the courts are wrong in that decision. If they don't have access to the defendants laptop because it's encrypted, she has the right to not incriminate herself granted by the 5th. If they can crack the encryption themselves, have at. If they can't, she shouldn't be required to give them information that will be used against her.

[JimH443]

linuxrants7xpg, on 27 January 2012 - 10:33 AM, said:

JimH443, on 27 January 2012 - 10:29 AM, said:

Simply put... the courts have pretty much decided that the 5th Amendment applies only to verbal testimony given inside a courtroom. Diaries and blood samples, although they do come from you, do not require your cooperation / permission and can be used against you. I doubt that the courts will view computers any differently than these.

And I said before, I think the courts are wrong in that decision. If they don't have access to the defendants laptop because it's encrypted, she has the right to not incriminate herself granted by the 5th. If they can crack the encryption themselves, have at. If they can't, she shouldn't be required to give them information that will be used against her.

Defendants can, and have, been compelled by courts to produce evidence against them. That's exactly what this is. Failure to do so results in being found in contempt of court.

[Yargs]

Suppose that the defendant had simply hidden her unencrypted laptop in a secure undisclosed location. Would the government be acting within its constitutional authority if it threatened to jail her for contempt of court if she refused to produce the missing laptop? Note that in this hypothetical example, the government isn't asking the defendant to tell it where the laptop is hidden, so from a strict constructionist point of view, it isn't forcing the defendant to testify verbally against herself. Rather, it is telling her to choose between producing the physical evidence that it wants (and that it hopes will help convict her) and going to jail for contempt.

In my opinion, this isn't a difficult constitutional question to answer. The whole point of the coercion is to pressure the defendant into participating in her own prosecution. And this negates the central protection that the fifth amendment was designed to establish. Consequently, I think that threatening defendants with jail for refusing (on fifth amendment grounds) to produce material evidence in a criminal case violates the fifth amendment.

And if you interpret the fifth amendment as extending beyond speech to include at least some physical actions that the government may want defendants to perform, then ordering a defendant to supply a decryption key to her encrypted laptop hard drive seems to me to fall well within the range of constitutionally suspect governmental conduct.

[JimH443]

Yargs, on 27 January 2012 - 11:11 AM, said:

Suppose that the defendant had simply hidden her unencrypted laptop in a secure undisclosed location. Would the government be acting within its constitutional authority if it threatened to jail her for contempt of court if she refused to produce the missing laptop? Note that in this hypothetical example, the government isn't asking the defendant to tell it where the laptop is hidden, so from a strict constructionist point of view, it isn't forcing the defendant to testify verbally against herself. Rather, it is telling her to choose between producing the physical evidence that it wants (and that it hopes will help convict her) and going to jail for contempt.

In my opinion, this isn't a difficult constitutional question to answer. The whole point of the coercion is to pressure the defendant into participating in her own prosecution. And this negates the central protection that the fifth amendment was designed to establish. Consequently, I think that threatening defendants with jail for refusing (on fifth amendment grounds) to produce material evidence in a criminal case violates the fifth amendment.

And if you interpret the fifth amendment as extending beyond speech to include at least some physical actions that the government may want defendants to perform, then ordering a defendant to supply a decryption key to her encrypted laptop hard drive seems to me to fall well within the range of constitutionally suspect governmental conduct.

I, personally, believe that being compelled to supply blood, hair, tissue and/or urine samples violates 5th Amendment protection. I feel the same way about diaries and emails. It's obvious, though, that the court has disagreed with me on countless occasions.

[Yargs]

The leading U.S. Supreme Court case on physiological evidence (blood, DNA, etc.) extracted from an unwilling defendant is a 1966 case, Schmerber v. California (http://caselaw.lp.fi...l=384&invol=757), where a drunk driver crashed his car, went to the hospital, and (after refusing to volunteer a blood sample) had the sample taken anyway by a doctor acting on police orders. The blood alcohol level proved that the man was legally drunk at the time of the accident.

In rejecting the defendant's fifth amendment claim on appeal, the U.S. Supreme Court wrote as follows: "We hold that the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends. ... Since the blood test evidence, although an incriminating product of compulsion, was neither petitioner's testimony nor evidence relating to some communicative act or writing by the petitioner, it was not inadmissible on privilege grounds."

Clearly the crucial test in the minds of the majority was whether the blood evidence constituted "evidence of a testimonial or communicative nature."

But the Fricosu case belongs to a different tradition of fifth amendment law--one that the Supreme Court addressed in an 1886 case, Boyd v. U.S. (http://caselaw.lp.fi...l=116&invol=616), where the defendant was charged with fraudulently importing "35 cases of plate glass"; to establish the value of the illegally imported glass, the trial court ordered the defendant to produce an invoice for 29 cases of similar glass that he had legally imported. The defendant argued that providing the invoice amounted to testifying against himself--and the Supreme Court agreed, saying "to require such an owner to produce his private books and papers, in order to prove his breach of the laws, and thus to establish the forfeiture of his property, is surely compelling him to furnish evidence against himself."

Moreover, the Supreme Court in Schmerber confirmed the continued validity of Boyd: "It is clear that the protection of the privilege [against self-incrimination] reaches an accused's communications, whatever form they might [384 U.S. 757, 764] take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one's papers. Boyd v. United States, 116 U.S. 616."

Whatever you may think of the Court's holdings on compulsory physiological evidence, it's pretty clear that its reasoning about such evidence doesn't extend to "an accused's communications, whatever form they might take."

I think that the district court judge incorrectly interpreted the Supreme Court's position (of 125 years' standing) on the fifth amendment guarantee against compulsory self-incrimination with regard to "communication" evidence, and I would expect a unanimous decision in Fricosu's favor if her appeal reaches the Supreme Court.