Are Passwords Protected by the 5th Amendment?

[Del Spaig]

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

I'd be interested to see where you found that out - I haven't been able to.

 

[evilneko]

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

I'd be interested to see where you found that out - I haven't been able to.

I'm pretty sure there was some mention of that in one of the links I used in my original thread on this case: http://www.escapistmagazine.com/forums/read/528.301343

Some of those sites didn't work very well with Opera so it'd be kind of a pain for me to look. >.>

 

[direkiller]

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.

I think there covered under the 4th amendment(unreasonable search and seizure) and Griswold v. Connecticut (right to privacy)

Cort order are another story if the hard drive was seized in search warrant she has no legal standing.

If the hard drive was a briefcase and the police asked for the combination to the briefcase it would be silly to say the briefcase is protected under the 5th amendment. Also it would be perfectly legal for the cops to break the lock to search for evidence(given the proper Cort warrants). I think there just trying to save resources as I don't think anyone at a police station has hacking ability and it's quicker then sending it off to the FBI(or whoever) for them to hack it.

 

[Del Spaig]

Thanks for the links - I'll give them a look.

 

[Zen Toombs]

Based upon my understanding, if the government has a search warrant they should be allowed access to a hard drive. The cops aren't stopped by a house being locked with a key, so why should they be stopped by a hard drive being locked with a password?

 

[evilneko]

Based upon my understanding, if the government has a search warrant they should be allowed access to a hard drive. The cops aren't stopped by a house being locked with a key, so why should they be stopped by a hard drive being locked with a password?

Because 5th Amendment. Also see ravenshrike's post right above yours. Not to mention they do have the hard drive.

Let's try this analogy I dangled in the previous thread, which no one took the bait on:

You have murdered someone. Your house gets raided by cops on a search warrant, looking for the remains and/or the murder weapon. You have cleverly hidden the evidence on that very premises, and the police are convinced of this as well, but despite their best efforts they haven't been able to find it.

Legally, you are only obligated to not impede their search efforts. You have every right to not assist them in any way. Would you agree to this?

 

[Zen Toombs]

Based upon my understanding, if the government has a search warrant they should be allowed access to a hard drive. The cops aren't stopped by a house being locked with a key, so why should they be stopped by a hard drive being locked with a password?

Because 5th Amendment. Also see ravenshrike's post right above yours. Not to mention they do have the hard drive.

Let's try this analogy I dangled in the previous thread, which no one took the bait on:

You have murdered someone. Your house gets raided by cops on a search warrant, looking for the remains and/or the murder weapon. You have cleverly hidden the evidence on that very premises, and the police are convinced of this as well, but despite their best efforts they haven't been able to find it.

Legally, you are only obligated to not impede their search efforts. You have every right to not assist them in any way. Would you agree to this?

You aren't required to assist the police, but you are required to allow them full access to the premises. Otherwise, you could just lock your door to keep out a warrant-wielding cop. The same applies to your computer or safe or anything else.

 

[evilneko]

Based upon my understanding, if the government has a search warrant they should be allowed access to a hard drive. The cops aren't stopped by a house being locked with a key, so why should they be stopped by a hard drive being locked with a password?

Because 5th Amendment. Also see ravenshrike's post right above yours. Not to mention they do have the hard drive.

Let's try this analogy I dangled in the previous thread, which no one took the bait on:

You have murdered someone. Your house gets raided by cops on a search warrant, looking for the remains and/or the murder weapon. You have cleverly hidden the evidence on that very premises, and the police are convinced of this as well, but despite their best efforts they haven't been able to find it.

Legally, you are only obligated to not impede their search efforts. You have every right to not assist them in any way. Would you agree to this?

You aren't required to assist the police, but you are required to allow them full access to the premises. Otherwise, you could just lock your door to keep out a warrant-wielding cop. The same applies to your computer or safe or anything else.

It does not follow that you must decrypt, or provide means to decrypt, any encrypted material.

They have all the access in the world to the container, that they can't find, or can't understand the contents is not the suspect's problem.

 

[aPod]

Based upon my understanding, if the government has a search warrant they should be allowed access to a hard drive. The cops aren't stopped by a house being locked with a key, so why should they be stopped by a hard drive being locked with a password?

Because 5th Amendment. Also see ravenshrike's post right above yours. Not to mention they do have the hard drive.

Let's try this analogy I dangled in the previous thread, which no one took the bait on:

You have murdered someone. Your house gets raided by cops on a search warrant, looking for the remains and/or the murder weapon. You have cleverly hidden the evidence on that very premises, and the police are convinced of this as well, but despite their best efforts they haven't been able to find it.

Legally, you are only obligated to not impede their search efforts. You have every right to not assist them in any way. Would you agree to this?

You aren't required to assist the police, but you are required to allow them full access to the premises. Otherwise, you could just lock your door to keep out a warrant-wielding cop. The same applies to your computer or safe or anything else.

Is that true?

I thought you could refuse and they could just break in your door and give you another charge.

 

[Redlin5_v1legacy]

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.

I certainly don't like the trend of thought that dictates "Seeing as privacy is getting so difficult to maintain these days, it doesn't matter if we do _______."

Constitutional rights go!

 

[evilneko]

If the courts have a lawfully obtained warrant for the information that password protects, then no, it isn't. It's no different than a warrant to search a fire safe.

It's very different, for reasons above.

Is that true?

I thought you could refuse and they could just break in your door and give you another charge.

If they've got a warrant, the knock's pretty much a courtesy. There's not much reason to open the door except to stop it being busted down, or the lock picked.

 

[evilneko]

If the courts have a lawfully obtained warrant for the information that password protects, then no, it isn't. It's no different than a warrant to search a fire safe.

It's very different, for reasons above.

It's no different. If they have a lawful warrant to search a fire safe you are not allowed to try to keep them out. It will just get you slammed with obstruction. A fire safe exists to protect confidential and important documents. If they have a lawfully obtained warrant to search an encrypted harddrive, again, trying to keep them out would get you slammed with obstruction. In either situation you should provide the key to get in.


The fact that they have a warrant to search it means they have reasonable grounds to believe there's evidence of a crime being committed within the protected area. It's not like they can just randomly knock on your door and demand access to your private harddrive.

Throw away the locked safe analogy because it is not applicable to this situation.

They have the data. That they can't understand it is their problem, not the defendant's.

 

[LetalisK]

snip

You are right in that the scenario of a locked safe(assuming with a traditional combo lock) and this situation are legally no different. Evilneko is right in that you are not legally required to provide the "combination" in either case.

Edit: Argue about the logic of this if you want, that's just how the law stands as of right now.

 

[ShadowKatt]

Why does it matter?i tend to agree; it would be a violation of her 5th amendment rights but if theybwant in that bad, why not just use a dictioary attack? Or failing that, a password cracker. I have one. They're not hard to come by and im sure the police can get a MUCH nicer ome than the crappy little cypher cracker i have.

 

[ph0b0s123]

The US being undecided about this is good. In the UK being forced to defeat your own encryption, has been law for a few years with people going to prison for not giving up passwords. Punishments are between 3 to 5 years.
http://en.wikipedia.org/wiki/Key_disclosure_law#United_Kingdom

Also in the US wasn't the precedent set already by the Supreme court that you can force someone to produce a key for a safe but not a combination for a safe as it comes from their mind. I just can't find a link to the precedent at the moment.

The only reason this is coming up is that they have effectively invented a safe that takes a very long time to open. So as per usual rather than trying to work out better ways to open these new safes or getting the evidence another way, both of which might take more man power, under the bus go civil liberties. It seems to me that freedoms that people have died to protect are only important to governments until they become inconvenient, then they are just dumped. The right for trial being eroded in the US recently just to get a defence budget through, being as case in point. Don't care how much Obama was crossing his fingers behind hos back when signing it, it was still very wrong.

I think the principle is simple, someone should never be forced into aiding their own conviction. Simple as....

 

[evilneko]

Why does it matter?i tend to agree; it would be a violation of her 5th amendment rights but if theybwant in that bad, why not just use a dictioary attack? Or failing that, a password cracker. I have one. They're not hard to come by and im sure the police can get a MUCH nicer ome than the crappy little cypher cracker i have.

Pretty much. Consider: my computer is not even top of the line. Depending on the type of encryption it's facing and what software I use to try to brute-force it, it can run hundreds of thousands to millions of passwords per second. Imagine what a more powerful rig could do--particularly one with multiple GPUs.

Throw away the locked safe analogy because it is not applicable to this situation.

I'll abandon it when I damn well please. Besides, it fits just fine, here's how:


Password protected hard drive: Protecting confidential data.

Locked fire safe: Protecting confidential data.


They're doing the exact same thing. If the court has a warrant to search it the password is not protected by the fifth amendment any more than the combination/key to a fire safe. The only difference is one's digital while one's physical, and that doesn't make a damn bit of difference as far as a search warrant goes.

They have the data. That they can't understand it is their problem, not the defendant's.

And I suppose having a safe they can't crack but have a warrant to search falls under the same logic, aye? guess we should let crims get out from under warrants by buying a top-of-the-line safe and storing the evidence therein, because by your logic a warrant wouldn't be able to compel them into unlocking that either.

No, it's not the same. They have access to the container (the hard drive) and they can browse the contents. As has been pointed out multiple times, that they cannot understand some of those contents is their problem, not the suspect's.

Let me try this again:

You have murdered someone. Your house gets raided by cops on a search warrant, looking for the remains and/or the murder weapon. You have cleverly hidden the evidence on that very premises, and the police are convinced of this as well, but despite their best efforts they haven't been able to find it.

Legally, you are only obligated to not impede their search efforts. You have every right to not assist them in any way. Would you agree to this?

 

[Aris Khandr]

Here's an alternate analogy: Say I am suspected of something, and they get a search warrant for my house. They find my diary, and have reason to believe that I made entries about the crime I am accused of in it. But they run into a problem. My diary is written in code, with my own alphabet as well. It's all perfectly legible to me, but they can't make heads or tails of it. Do I have to translate my diary for them? Same situation, they have the data, it is sitting right in front of them. But without my knowledge, they'll never understand it.

 

[evilneko]

Here's an alternate analogy: Say I am suspected of something, and they get a search warrant for my house. They find my diary, and have reason to believe that I made entries about the crime I am accused of in it. But they run into a problem. My diary is written in code, with my own alphabet as well. It's all perfectly legible to me, but they can't make heads or tails of it. Do I have to translate my diary for them? Same situation, they have the data, it is sitting right in front of them. But without my knowledge, they'll never understand it.

That's pretty much exactly the analogy that the defense used in this case, actually. It's pretty much spot-on for the situation. The police have a device containing information, but can't understand that information. Well, that's just too bad for them.