Is your computer password protected by the 5th Amendment? (1 Viewer)

[superchuck500]

Wouldn't there be precedent in a Mafia case where their accountant used a code or something?

But they can get that information from a witness (i.e. the accountant if the accountant wasn't a defendant, or if the accountant got a plea bargain).

The key here is whether the defendant is being forced to give up self-incriminating information. It only protects the one person who's being asked to give it up. Any other person can provide the info and it doesn't fun afoul of the 5th.

 

[superchuck500]

This is the text. This is the only text. This is where it call comes from-

. . . nor shall be compelled in any criminal case to be a witness against himself . . .

http://caselaw.lp.findlaw.com/data/constitution/amendment05/

If no other witness (or other way of obtaining the password) is available, it seems to me that forcing the defendant to provide to law enforcement the password that will open the evidence against him is forcing the defendant to be a witness against himself.

 

[JimEverett]

hell yeah - i am going to have to start recommending PGP to my clients.

 

[superchuck500]

hell yeah - i am going to have to start recommending PGP to my clients.

So you have clients that the only evidence against them is found in a computer that could be password protected with a sophisticated password system?

I don't think this is going to have much application beyond a very tight context. There can be no other witnesses. There can be no other evidence except the evidence in the computer that only the defendant knows the password and the password can't be hacked within a reasonable amount of time. Those are the only situations in which this would apply.

 

[Taurus]

But they can get that information from a witness (i.e. the accountant if the accountant wasn't a defendant, or if the accountant got a plea bargain).

The key here is whether the defendant is being forced to give up self-incriminating information. It only protects the one person who's being asked to give it up. Any other person can provide the info and it doesn't fun afoul of the 5th.

That's what I was referring to, the accountant. If the books remain just gibberish, he stays out of jail and off the Mob's hit list. If he gives up the cypher key, he goes to prison and is swiftly whacked by the Don.

 

[JimEverett]

So you have clients that the only evidence against them is found in a computer that could be password protected with a sophisticated password system?

I don't think this is going to have much application beyond a very tight context. There can be no other witnesses. There can be no other evidence except the evidence in the computer that only the defendant knows the password and the password can't be hacked within a reasonable amount of time. Those are the only situations in which this would apply.

Why would it have to be the "only evidence" against them. Or even evidence against them at all?
Anything that makes the government's job harder is worth recommending in my book.

 

[superchuck500]

Why would it have to be the "only evidence" against them. Or even evidence against them at all?
Anything that makes the government's job harder is worth recommending in my book.

Well yes. Very good point.

I was just trying to make the point that I don't think this issue would be in play in all that many cases. Very few and far between.

 

[JimEverett]

Well yes. Very good point.

I was just trying to make the point that I don't think this issue would be in play in all that many cases. Very few and far between.

I don;t know if that is true.

Information on computers play a fairly big role in criminal cases now. Drug dealers, pimps, certainly financial sector crimes, child porn - all often have info on their computers that the government uses in their cases.

 

[superchuck500]

I don;t know if that is true.

Information on computers play a fairly big role in criminal cases now. Drug dealers, pimps, certainly financial sector crimes, child porn - all often have info on their computers that the government uses in their cases.

True, but drug dealers have customers and suppliers and people that see them sell drugs, and stacks of unexplainable cash. Financial crimes still have the actual crime, even if the evidence is password protected on a computer - for instance if they're stealing money from a corporation, that is happening both on the person's computer and at the corporation somewhere (corp's computer or banking or whatever). These situations aren't likely to present cases where the government's case depends on getting the password of one computer that is only within the control of the one defendant. Not saying the password protected evidence wouldn't be an issue - it just isn't likely to be such a grave issue for the government's case that the only hope is to around the 5th amendment.

Child porn is probably one of the areas where you could see this happening. But then again, where did the porn come from? If it was self-generated, there's likely to be other witnesses and evidence. If it was obtained through a computer, it might be possible to get evidence without the one computer. But yes, that's a good example of an area where this might be more important.

But in the grand scheme of things- how many child porn cases are there where the computer is the only source of evidence? Have you been involved with or know anyone who was with a case like that? I'm just saying in the big picture, it doesn't seem like it would come up that often.

 

[bigdaddysaints]

Anything that makes the government's job harder is worth recommending in my book.

would you say that if that was your child s pictures on his computer?

 

[JimEverett]

would you say that if that was your child s pictures on his computer?

Would you say it if it was your child being prosecuted by the government?

 

[TheDeparted]

So answer this one...if the password itself is admission of a crime (even if giving the password is not protected by the 5th amendment) wouldn't the act of revealing the password be self-incrimination? (i.e. your password is "IKilledBobSmithWithAButcherKnifeInTheBallroomMay20th")

 

[TheDeparted]

hell yeah - i am going to have to start recommending PGP to my clients.

PGP is pretty good...

 

[bigdaddysaints]

not if he had child pornography on his computer.

 

[bclemms]

not if he had child pornography on his computer.

So everyone should give up their 5th amendment rights so they can prosecute this guy?

Just another case of sacrificing individual liberties in the name of safety.