Are Passwords Protected by the 5th Amendment?

[RJ 17]

Got to work today and saw an interesting article on msn.com whose tagline simply read "She must give up password." The story is about a Colorado woman who is on trial for money laundering, bank fraud, and wire fraud. The court has decreed that she must turn over the password to her harddrive while she and the Electronic Frontier Foundation (EFF), a "digital civil rights" group, say that giving up her password would violate her 5th Amendment right to not being forced to give up self-incriminating evidence. Specifically they're upset that no special deals or concessions are being offered to the lady to compensate for this violation of her rights.

The whole article can be read here: http://technolog.msnbc.msn.com/_news/2012/01/23/10219384-judge-orders-woman-to-give-up-password-to-hard-drive

I thought this raised a VERY interesting question. Are passwords to harddrives which can potentially contain incriminating evidence against you protected by your 5th Amendment rights? On a technical letter-of-the-law standpoint, I'd actually argue that yes. Since you cannot be forced to submit self-incriminating evidence, I'm not certain you should be able to be forced to perform an act that would lead to self-incrimination.

On the other hand, though, if we allowed this lady to NOT give up her password, that does set an incredibly dangerous precedent for future cases where it might be necessary to get the password to someone's harddrive, such as cases which the article points out: "child exploitation, national security, financial crimes, terrorism, and drug trafficking."

What do you think, Escapists? Does the 5th Amendment protect your password if you've been using your computer to help you be naughty? Or would this be the digital version of coming up with a warrant to search someone's apartment? The case that the EFF made stated that prosecutors didn't specify what they were looking for on the harddrive, and as such it amounted to just fishing for evidence to use against the woman.

 

[Thaluikhain]

Well, technically it seems as if she shouldn't have to give up her password, but they are free to start sticking her DoB and pet names in and hoping for the best.

Which is a bit silly, but there it is.

 

[Esotera]

They don't require to know her password, they just want her to type it in (without them looking at it or anything) so that they can search for encrypted files relevant to their investigation. I think that she should be required to give it if there's other evidence that has shown beyond reasonable doubt that she may have files relevant to the investigation on her computer. Otherwise, I'm with the EFF.

 

[Rainmaker77]

What would the punishment be for NOT giving her password?

Seems pointless punishing someone for something if the punishment for not giving the password is less than what the evidence hidden by it would grant.

 

[Nielas]

What would the punishment be for NOT giving her password?

Seems pointless punishing someone for something if the punishment for not giving the password is less than what the evidence hidden by it would grant.

She would be in contempt of court and could be held in jail indefinitely until she complied.

I would equate this to the court requiring her to give up the keys to a storage locker or the combination to a safe so the police can search it (with a legal warrant) without having to force their way into the storage device.

 

[evilneko]

Oh, so there's news on the Fricosu case finally.

And I absolutely disagree with the judge's decision, and the assertion that the alternative would lead to so many failed cases. This ruling completely subverts the 5th Amendment, basically saying that if you know something the police want to know, you're compelled to cough it up. The 5th is supposed to prevent that from happening without you gaining some benefit from it. That's right: this ruling also throws any idea of a deal out the window, since now they can just compel your self-incriminating testimony.

 

[joe-h2o]

Oh, so there's news on the Fricosu case finally.

And I absolutely disagree with the judge's decision, and the assertion that the alternative would lead to so many failed cases. This ruling completely subverts the 5th Amendment, basically saying that if you know something the police want to know, you're compelled to cough it up. The 5th is supposed to prevent that from happening without you gaining some benefit from it. That's right: this ruling also throws any idea of a deal out the window, since now they can just compel your self-incriminating testimony.

It depends whether the password is something you "know" or whether it is more like a physical object, like a key to a safe.

If the police obtain a warrant to search your house, are you obligated to give them a key to your safe, or are they entitled to bust if open if they want?

I don't think the ruling is as a broad as "if you know something they want, you must give it up" as much as it is "passwords are like physical keys".

I'm not decided on it fully.

 

[Del Spaig]

It's certainly a tricky proposition - sort of the hybrid offspring of a fourth and fifth amendment problem. The locker comparison is really fairly apt; the password is a means of access to a storage medium which may or may not contain something incriminating. The tricky part is where it's not an actual physical object - it's a word (or word-like construction). Setting either precedent would open up a wacky can of legal worms. But it really seems like a fourth-amendment thing - where police would need a warrant to access your hard drive, and if you deny them that, they'd be allowed to "break in". Which is a bit harder than kicking in a door or cutting a lock, but it's basically the same thing conceptually. A hard drive holds items that you own, it's a storage medium. The password is the key.

Makes me wonder if this couldn't also be applied to lockers locked with combination locks - could forcing the guy to hand over the combination be a Fifth amendment violation?

 

[evilneko]

It depends whether the password is something you "know" or whether it is more like a physical object, like a key to a safe.

If the police obtain a warrant to search your house, are you obligated to give them a key to your safe, or are they entitled to bust if open if they want?

Naturally if police want into a safe, a shed, whatever and you have the only key, you are not obligated to provide said key but if you don't they have every right to break in. Similarly, they can try all they want to brute-force the encrypted volume or if it's a particularly crappy encryption, break it.

I don't think the ruling is as a broad as "if you know something they want, you must give it up" as much as it is "passwords are like physical keys".

I'm not decided on it fully.

But that's just it--passwords are by definition, "something you know." A password is not like a key to a safe at all. It's knowledge. It's more akin to knowing the location of some evidence that might incriminate you, a body, a tape, whatever it may be. That knowledge can't be forced out of you except with some sort of deal. Passwords are knowledge and thus should be treated the same way.

 

[isometry]

She could always say "I forgot the password, I can't give it to you." It might be perjury, but I don't see how they would ever prove that.

 

[Jodah]

They can't force her to give up the password (in my opinion of course) but they CAN hack into it with their own techs to get the info off the drive. You don't have to give police your keys if they have a search warrant but they can kick your door down to get in. Same kinda thing here imo.

Most people just let them in so they don't have to replace their door.

 

[Scipio1770]

I would say yes it's protected by the 5th due to the whole self-incrimination thing.

Besides, this is the US; if it was a matter of national security, there wouldn't be a trial.

 

[Yureina]

Ugh... disgusting.

Yeah, this is absolutely protected by the 5th Amendment. Even if there was nothing actually in this harddrive, i've always had a problem with allowing people to snoop around on other people's hard drives. It's just a disgusting invasion of privacy.

 

[Del Spaig]

Yeah, this is absolutely protected by the 5th Amendment. Even if there was nothing actually in this harddrive, i've always had a problem with allowing people to snoop around on other people's hard drives. It's just a disgusting invasion of privacy.

That's just it, though - protection against not having your stuff snooped through is Fourth Amendment stuff, not Fifth. The Fifth amendment case pretty much hinges on whether a password is more like a key, or more like something you'd testify to. The argument could be made either way, really - it'll be interesting to see which way they go.

 

[Digitaldreamer7]

I'd have to err on the side of "It's knowledge not a physical object." i.e. the location of the body. Therefore if you do not give up said knowledge you can be held in contempt of court. In which case you can say "I forgot." Since they can't really prove beyond a reasonable doubt that you still remember the password, the contempt really won't stick. I guess it would depend on the judge and how good your lawyer is. It's completely up to the judge, but, in the US legal system the have to be able to prove what they are hold you in contempt for (in a criminal case).

This is all only brought about because encryption that is free, open source (truecrypt), and without a backdoor built into it (microsoft bitlocker) can't be cracked or hacked if you use a strong password.

I use truecrypt on ALL of my data, especially my laptop and other mobile devices. It's invaluable when you are working away from a controlled environment.

 

[LetalisK]

This is not a 5th Amendment issue. That was a bullshit argument thrown at the court to get anything possible to stick. Your passwords are no more inherently self-incriminating than a lock combo or car keys. If anything this is a 4th amendment issue if authorities have not specifically spelled out what type of information and files they would be looking for. Though the claim they haven't was also given by the same person that tried to use the 5th Amendment argument, so it could very well be another faulty spaghetti bowl argument(throw everything at the wall and see what sticks).

 

[evilneko]

Yeah, this is absolutely protected by the 5th Amendment. Even if there was nothing actually in this harddrive, i've always had a problem with allowing people to snoop around on other people's hard drives. It's just a disgusting invasion of privacy.

That's just it, though - protection against not having your stuff snooped through is Fourth Amendment stuff, not Fifth. The Fifth amendment case pretty much hinges on whether a password is more like a key, or more like something you'd testify to. The argument could be made either way, really - it'll be interesting to see which way they go.

Pretty sure either Fricosu's lawyer(s) or the EFF or both would've brought up the Fourth if they thought it appropriate. The EFF did mention that the warrant didn't specify exactly that they were looking for, which is most likely a way of slipping in a Fourth-related question for the jury and appellate courts to consider. The main thrust of the argument though is that it is unconstitutional for a suspect to be compelled to testify to something he/she knows without a grant of immunity.

 

[LetalisK]

The main thrust of the argument though is that it is unconstitutional for a suspect to be compelled to testify to something he/she knows without a grant of immunity.

Exactly. And this isn't a testimony, hence it's not a Fifth Amendment issue. If a violation of her rights is present, it's from a different amendment.

Edit: Actually, I take this and my previous post back. Evidently "codes" are protected under the 5th Amendment.

 

[evilneko]

Nevermind, Letalisk edited. This post no longer made sense, so I deleted it.

 

[LetalisK]

The main thrust of the argument though is that it is unconstitutional for a suspect to be compelled to testify to something he/she knows without a grant of immunity.

Exactly. And this isn't a testimony, hence it's not a Fifth Amendment issue. If a violation of her rights is present, it's from a different amendment.

Except that it is a testimony. You're providing the police with something that exists only in your mind.

I'll refer you to the edit I made.