Is your computer password protected by the 5th Amendment? (2 Viewers)

[DadsDream]

Would a court order to type in your password to unlock encrypted files on your computer constitute a 5th Amendment violation against self-incrimination?

That's what the courts are trying to decide in this case.

WASHINGTON POST via MSNBC
In child porn case, a digital dilemma
U.S. seeks to force suspect to reveal password to computer files
January 16, 2008

The federal government is asking a U.S. District Court in Vermont to order a man to type a password that would unlock files on his computer, despite his claim that doing so would constitute self-incrimination.

The case, believed to be the first of its kind to reach this level, raises a uniquely digital-age question about how to balance privacy and civil liberties against the government's responsibility to protect the public.

READ MORE
http://www.msnbc.msn.com/id/22672241/

 

[bclemms]

If the person is being forced to give the password up and the result of that action he incriminates himself then yes.

If the police get a warrant for the computer and hack the password then no.

 

[DadsDream]

In this case, a magistrate sided with the 5th Amendment, cautioning:

"If Boucher does know the password, he would be faced with the forbidden trilemma: incriminate himself, lie under oath, or find himself in contempt of court."
Magistrate Judge Jerome J. Niedermeier

Now the government is appealing that ruling.

 

[Devildog]

Now the government is appealing that ruling.

Of course they are.

 

[DadsDream]

To clarify, I broadened the discussion to computer passwords in general.

In this particular case the government wants to compel the accused to divulge the password to encrypted files on his computer.

I'm figuring that if the 5th Amendment applies to a file encryption password, it applies to any and all passwords on a computer.

In this case, I think it does apply. If they want those encrypted files, they're going to have to hire somebody to hack the encryption or get the encryption software company to do it.

They definitely should not compel the defendant to give up the password by threatening him with contempt if he doesn't.

 

[Pure Energy]

From my layman's perspective, I don't know see this issue as that complicated.

Say the porn was printed out and in a safe. The police show up to his residence with a warrant. The owner refuses to open the safe because he fears such an action would lead them to incriminating materials.

What would they do?

Wouldn't the same course of action apply except in the digital sense?

 

[Jonesy77]

From my layman's perspective, I don't know see this issue as that complicated.

Say the porn was printed out and in a safe. The police show up to his residence with a warrant. The owner refuses to open the safe because he fears such an action would lead them to incriminating materials.

What would they do?

Wouldn't the same course of action apply except in the digital sense?

The can get into the safe without his consent. You can't blowtorch a computer to get at the incriminating info.

 

[BullDawg]

Who owns the computer?

 

[DavidM]

Say the porn was printed out and in a safe. The police show up to his residence with a warrant. The owner refuses to open the safe because he fears such an action would lead them to incriminating materials.

What would they do?

Wouldn't the same course of action apply except in the digital sense?

An opinion on that from the article:

In his ruling, Niedermeier said forcing Boucher to enter his password would be like asking him to reveal the combination to a safe. The government can force a person to give up the key to a safe because a key is physical, not in a person's mind. But a person cannot be compelled to give up a safe combination because that would "convey the contents of one's mind,'' which is a "testimonial" act protected by the Fifth Amendment, Niedermeier said .

 

[Pure Energy]

The can get into the safe without his consent. You can't blowtorch a computer to get at the incriminating info.

That was my thinking. Along that same line of thinking, can't the gov't run password breaking routines to avail themselves of the information? Sure it would be expensive and time-consuming, but it seems to me having the accused supply the password simply becomes an exercise of judicial or administrative expeditiousness.

 

[Taurus]

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

 

[Jonesy77]

That was my thinking. Along that same line of thinking, can't the gov't run password breaking routines to avail themselves of the information? Sure it would be expensive and time-consuming, but it seems to me having the accused supply the password simply becomes an exercise of judicial or administrative expeditiousness.

I'm not sure, but I believe they can hack the thing. The question is whether they have the ability, I guess. The guy hiding the files might be a hacker himself, in which case they're never finding those things without his approval.

 

[superchuck500]

An opinion on that from the article:

In his ruling, Niedermeier said forcing Boucher to enter his password would be like asking him to reveal the combination to a safe. The government can force a person to give up the key to a safe because a key is physical, not in a person's mind. But a person cannot be compelled to give up a safe combination because that would "convey the contents of one's mind,'' which is a "testimonial" act protected by the Fifth Amendment, Niedermeier said .

I think what matters is whether the revelation is self-incriminating. If the safe contains evidence of the person's wrong doing, I'm not so sure that it isn't protected. (I'd have to read those cases). And likewise, if the computer contains evidence of the person's wrongdoing, I'm not so sure they can force the person to give it up.

The 5th Amendment doesn't protect or not protect any class of information - whether tangible (such as a password or combination or even a person's whereabouts on a particular day - that's basically a form of physical evidence) or intangible. What it protects is a person from having to incriminate themselves.

They can still get the computer. They can still get the safe. The 5th Amendment doesn't make the computer go away. But I do see a problem with making the accused provide the password that leads to evidence of illegal activity. The government can get it from somewhere else - including, in my opinion (and with judicial approval beforehand) a password-breaking software program. But simply making the defendant give up the password is a problem, IMO, given the nature of the 5th Amendment.

Of course, this is all off the top of my head. I haven't really read the cases in this area.

 

[saintfan-n-alex]

i thought giving out your password would be a violation of sarbanes - oxley

corp email is not private per congress

 

[DavidM]

That was my thinking. Along that same line of thinking, can't the gov't run password breaking routines to avail themselves of the information? Sure it would be expensive and time-consuming, but it seems to me having the accused supply the password simply becomes an exercise of judicial or administrative expeditiousness.

Also from the article:

For more than a year, the government has been unable to view drive Z.

A government computer forensics expert testified that it is "nearly impossible" to access the files without the password, the judge wrote. "There are no 'back doors' or secret entrances to access the files," he wrote. "The only way to get access without the password is to use an automated system which repeatedly guesses passwords. According to the government, the process to unlock drive Z could take years . . . "