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Show Of Hands November 4th, 2013 4:02pm

The prosecution in a criminal case asks the judge to order that the defendant decrypt their hard drive. Does being forced to decrypt a file violate a person's Fifth Amendment rights against self-incrimination (i.e. the "right to remain silent")?

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zaxslash
11/07/13 8:09 am

sure, but we can seize the hard drive and decrypt it ourselves so it won't matter either way. just curious, what would they do if he just doesnt decrypt it? lock him in a room with his computer till he does it? gov should just hire lots of programmers for these kinds of jobs (and for security)

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jenniferbuh IL
11/05/13 3:41 pm

Yes, but if someone else could decrypt it somehow that would be fine

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zsteph
11/05/13 1:37 pm

So 24% of people here are idiots.

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weallhave1 Tennessee
11/05/13 9:14 am

There's a huge difference between physical evidence and testimony.

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BlkDth here
11/05/13 7:31 am

not to give anything to a criminal but yeah if that would be bad for them you shouldn't be able to force them to do it. Really hate to give a criminal a bone though.

Valendr0s Old Curmudgeon
11/05/13 5:41 am

New encryption scheme... One password decrypts, another deactivates all passwords, forcing then to guess the 256 bit encryption hash directly... good luck...

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Crusader Rome in 67AD
11/04/13 10:52 pm

That would be searches and seizures, but it wouldn't matter if the police got a search warrant for the hard drive

mcdkm Houston
11/04/13 8:17 pm

A computer should be treated exactly the same as a diary or safe deposit box.

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mojopie2
11/04/13 8:21 pm

Yep, if it has a lock, it is up to the state to pick the lock. The defendant is not required to unlock it for them.

MericaRules
11/04/13 7:49 pm

A hard drive is a physical object as is the information on it. Being asked to decrypt is is paramount to being asked to unlock a house or safe. It's not prying into his brain its prying into a storage device.

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getupbaby South City
11/04/13 7:50 pm

You can't legally force someone to open a safe either.

MericaRules
11/04/13 7:53 pm

You can't force someone period lol. You can order them to. It just means refusal would be viewed negatively by the court. That's the issue at stake.

mojopie2
11/04/13 8:11 pm

Wrong, you can't make him do or say anything to incriminate himself. That action is on the defendant only. You can ask, he can refuse, then the state computer forensics can try to crack the code. You can't force a defendant to help the prosecution.

mojopie2
11/04/13 8:18 pm

At the time of the trial, if they can't open the drive, they can't admit it as evidence if it because there is nothing incriminating to be shown, can't tell the jury he refuse to open it because without any evidence to present, it is a paper weight.

MericaRules
11/04/13 8:21 pm

Just as it's not self incriminating to ask for they key to a house it's not self incriminating to ask for the "key" to a hard drive. Your logic doesn't work because it's the same as a safe or house or car which a defendant, under reasonable...

MericaRules
11/04/13 8:21 pm

...cause of suspicion could be "forced" or rather ordered to open.

mojopie2
11/04/13 8:23 pm

Wrong again, if they want to enter your home with a warrant, you don't have to open the door for them, they then would break the door in to exercise the warrant. You are not require to assist in anyway the prosecution against you.

mojopie2
11/04/13 8:26 pm

It is not incriminating, for them to ask, but it would be self incriminating giving the password as it would be admission to ownership, which in itself is up to the state to prove without the defendants help.

mojopie2
11/04/13 8:34 pm

"Nor shall be compelled in any criminal case to be a witness against himself," the moment he gives up the password he's admitting to the ownership or at least co-ownership of the information present on the HDD, the very essence of self incrimination.

MericaRules
11/04/13 8:56 pm

You are using a technicality though. While technically you may be partially right, practically you are not. You can't prove a gun is owned by the person unlocking the safe containing the gun. I will admit it is at least a grey area tho.

purplemonkey New York
11/04/13 4:13 pm

if you've got nothing to be guilty of, then you should have nothing to hide

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mojopie2
11/04/13 4:47 pm

If he's guilty, it's exactly a reason to hide it. Burden to prove guilt is the prosecutors, the 5th protects a person from being compelled to help them. If they can't prove without a persons help, he has no case. Trails are about proof not truth.

mojopie2
11/04/13 5:43 pm

Trials*

yourpalal
11/04/13 4:00 pm

It absolutely violates their 5th amendment right. For it to be legal, the prosecution should request a warrant and have someone else decrypt the hard drive

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thebarr
11/04/13 4:05 pm

It's more like 4th Amendment search and seizure. But if they have a warrant, I'm fine with it.

getupbaby South City
11/04/13 4:08 pm

The forth amendment only entitles the court to take possession of the computer. You can't force the defense to present the material on a platter!

navystu
11/04/13 3:55 pm

As long as they have a warrent

getupbaby South City
11/04/13 4:09 pm

If they have a warrant, they get the computer. If they can't get the data themselves, tough shit.

pinkyusuck The Carribean. I wish.
11/04/13 3:41 pm

Yes, it's a Fifth Amendment violation. If the prosecution wants the file, then they can try to decrypt it. If they can't, then tough shiite.

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theavgguy I.E.
11/04/13 3:36 pm

The case this came from, I had this posted lower down. en.m.wikipedia.org/wiki/The case this question came from United_States_v._Fricosu

mphanley Small Town
11/04/13 3:28 pm

I'm curious.... Any lawyers that can shed some light on this?

mphanley Small Town
11/04/13 3:29 pm

Because we can argue until we are blue in the face over this one

Captainbstring Biden is a Clown
11/04/13 3:08 pm

No one has the right or the authority to force this person to decrypt his hard drive and give these people access to it. They can require it of him, but ultimately the decision lies with the owner of the hard drive and there's nothing they can do.

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gatsbyxxv
11/04/13 2:50 pm

I'd say yes, but the Supreme Court would have the final word. Not sure which direction they would go.

mojopie2
11/04/13 4:53 pm

What's SCOTUS going to do, beat it out of him? Best they could do is contempt of court and they're limited on that, if it is a long term prison sentence he's facing, then he'd just have to keep quite. Not like blood that can be forcefully taken.

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11/04/13 2:35 pm

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pinkyusuck The Carribean. I wish.
11/04/13 3:42 pm

Don't beg. Be witty, funny, or persuasive in the comments and people will follow you.

BamaGirl ROLL TIDE from Arizona
11/04/13 2:26 pm

If they can't decrypt it, then they have no right to it.

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crewsmissle Florida
11/04/13 2:13 pm

Is this actually happening anywhere? Links anyone? JW

ladyniner81 no hope for humanity
11/04/13 1:56 pm

If they know and can prove they did something, and got the warrant.

theNobamist Silicon Valley
11/04/13 1:46 pm

Bad question. This is an issue of search and seizure. Get a warrant, and then you can demand the drive acquisition and decryption.

theNobamist Silicon Valley
11/04/13 1:47 pm

A true genius would decrypt it all in a way that coverts everything to photos of kittens and poems about how nice grandma is.

getupbaby South City
11/04/13 4:12 pm

The court totally has a right to try to decrypt it themselves, but the fourth amendment doesn't give the courts the right to make the defendant do anything.

dryanmorr
11/04/13 1:28 pm

If there is a warrant and probable cause.

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Zarrous Waldoboro
11/04/13 1:05 pm

In cases of emails being sent to and from the defendant there is no fifth amendment violation. A hard drive in this case can be seen as a written account of their activities.

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getupbaby South City
11/04/13 1:36 pm

Any information the prosecution gathers from email can be used, but forcing someone to decrypt is a clear breach of the fifth. If the prosecution has the ability to do it themselves, it's fair game, otherwise, no.

Zarrous Waldoboro
11/04/13 2:25 pm

Asking the password for the folder is not a violation of the fifth, however if they forced him to type in the password to unlock the files would be.

BamaGirl ROLL TIDE from Arizona
11/04/13 2:32 pm

Asking isn't, but if they are FORCED to divulge, then I think it is.

thejoker Call me Bartholomew
11/04/13 1:04 pm

There's a fine line between "freedom of speech" and hiding incriminating evidence.

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aj1545 Cat Lady
11/04/13 12:47 pm

Seems like a fourth amendment issue to me. With a warrant, it may be necessary. Beleive it or not, some people are idiotic enough to record their crimes. Why shouldn't it be used as evidence? Just no searching for the sake of searching.

getupbaby South City
11/04/13 1:31 pm

The issue here is the prosecution needs the defendant to do all the work to get to the evidence. Total 5th amendment breach.

chemist2016
11/04/13 12:46 pm

no way these police states need to find away their self to throw citizens in jail

tasalley North Carolina
11/04/13 12:31 pm

I don't think It's the 5th that applies here; I believe it's the 4th amendment we should be talking about. As long as there has been sufficient cause for the judge to issue a search warrant it's no different from finding a body in the car trunk. You have to decide case by case.

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getupbaby South City
11/04/13 1:33 pm

The forth amendment is in tact. The prosecutor has the computer. Warrant executed. Forcing the defendant to do anything is a breach of the fifth.

mojopie2
11/04/13 5:48 pm

They can compel the defendant to open the trunk, with a warrant, THEY can open the trunk, by force against the trunk, but not against the defendant. You can't compel a defendant to aid in the prosecution.

mojopie2
11/04/13 5:50 pm

Just like the trunk, the prosecution can break into the hard drive, with a warrant. If they figure it out, bonus, if not, the defendant can not be compelled to help them.

Nemacyst No Lives Matter
11/04/13 12:06 pm

This user is currently being ignored

getupbaby South City
11/04/13 12:43 pm

That doesn't explain why it isn't self-incrimination.

mojopie2
11/04/13 5:56 pm

They have a right, with a warrant, to take the media. It it totally up to the prosecution the analyze it with whatever tools THEY have, they can't compel the defendant to aid the analysis, includes opening the files. If they can't do it, it's on them

pcox104 Florida
11/04/13 11:58 am

I think it does violate the 5th, but I doubt a judge would rule that way. I could see this being taken to higher courts.

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pcox104 Florida
11/04/13 12:07 pm

It will be treated like the rest of the computer and be subject to a warrant. However, in this day, people & computers are joined at the hip, and there should be some protections. Too bad one can't determine what's on it without decrypting it.

pcox104 Florida
11/04/13 12:08 pm

In order to be protected under the 5th, it would have to be decrypted and then everything determined what is admissible or not.

Injectable Mojave Mo Problems
11/04/13 11:56 am

This seems like something the prosecution should pay an expert to do...

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doctalk not all who wander r lost
11/04/13 11:50 am

Help. I need a lawyer on that one. I believe the info can be used. Not sure if defendant has to actually decode it.

doctalk not all who wander r lost
11/04/13 11:53 am

Defendant just might destroy the info in the process of decoding... Hmmmm

DerekWills Lone Star Gun Rights
11/04/13 11:41 am

That's a 4th Amendment issue. They better get a warrant.

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pcox104 Florida
11/04/13 11:59 am

Presumably there already is a warrant.

tasalley North Carolina
11/04/13 12:38 pm

Warrants are very specific. The first one probably would apply only to the place the computer was found, home, office, car, etc. Then another warrant would be needed for the hard drive. I think.

DrFaust
11/04/13 11:41 am

I think it depends if someone is being accused of having child pornography then no. It should require a warrant the same as entering a home

bird95
11/04/13 11:37 am

The 5th Amendment was created to protect defendants against being forced into false confessions. That is completely different than revealing true and relevant evidence.

Loadmaster Sacto
11/04/13 11:28 am

By decrypting the drive you are directly providing the evidence being used against you, so this absolutely violates the 5th Ammendment. We made things easier on the defendant in this country try for a reason.

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bMyComrade Stumptown
11/04/13 11:56 am

Wouldn't the same then apply to opening the door for a search. If there is a warrant, all you are doing is the equivalent of opening that door.

Loadmaster Sacto
11/04/13 12:13 pm

You're right, it is the same... You are indeed just opening the door, but the law clearly says that you cannot be FORCED to open that door yourself. If you don't want to, you don't have to. They must get a warrant and do it their-damn-selves.

bMyComrade Stumptown
11/04/13 12:38 pm

Same as you can't be forced to open that door, they can even less force you to decrypt. The warrant says open the door or decrypt this file - you have equal ability to say no.

pinkyusuck The Carribean. I wish.
11/04/13 3:48 pm

@Comrade, you don't have to open the door or decrypt the drive. The law can try to do both themselves. If they can't, then tough shiite

ajpreyes Laveen
11/04/13 10:47 am

Would being asked to open a safe be a violation?

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getupbaby South City
11/04/13 1:42 pm

I think I remember a case where a guy refused to open a safe in court and got sued for the cost of blowing it open by the state trying him after incriminating evidence was found. I can remember what the outcome was, but it was a 5th amendment case.

randolphus1 etown , ky
11/04/13 10:41 am

It is NEVER in your best intrest to talk to law enforcement. If you are in court as a defendant , you need a lawyer.

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huskermedic Cincinnati
11/04/13 10:36 am

Not if you are the defendant, that means you are on trial. So you have to face the music in court, and hopefully you get one of those's fair trials.

spero42 Warrington, PA
11/04/13 10:23 am

That's a tricky one. The question "what is your password" is not, in itself, self-incriminating. What they find in the file may be, but the question is not. If you have a body in your living room, you can't plead 5th when asked your address...

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Diknak Ohio
11/04/13 10:59 am

Yes you can. You are not required to answer any questions. You can sit in complete silence and there is nothing they can do about it.

spero42 Warrington, PA
11/04/13 12:01 pm

Not EXACTLY true. A judge can hold you in contempt for not answering questions...

pinkyusuck The Carribean. I wish.
11/04/13 3:59 pm

Contempt, maybe. But that's probably better than whatever they're after you for.

gonzoboy Arizona
11/04/13 10:20 am

I will make my mistake here, on the side of privacy. I say yes.

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EarthMunkey The Golden Rule. Always.
11/04/13 10:16 am

Yes, but only if they have chosen to remain silent.

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rebelfury76 No Justice, No Peace
11/04/13 10:17 am

You can invoke your fifth amendment rights at any time

EarthMunkey The Golden Rule. Always.
11/04/13 10:28 am

Yeah but can you jump in and out of it? Choose to answer some questions but not others?

MscottL13 63141
11/04/13 10:12 am

if a warrant is obtained, a defendant's hard drive may be seized and decrypted by law enforcement. however, a defendant cannot be forced to perform this task.

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mpell17 60448
11/04/13 10:16 am

I agree^^

EarthMunkey The Golden Rule. Always.
11/04/13 10:31 am

That was this issue with that drug dealers phone. The swipe encryption was I breakable and they ended up dismissing the phone as usable evidence.

MscottL13 63141
11/04/13 10:12 am

if a warrant is obtained, a defendant's hard drive may be seized and decrypted by law enforcement. however, a defendant cannot be forced to perform this task.

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Fjolsvin Midgard
11/04/13 10:06 am

Simple answer. "I forgot my password".

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pisomojado
11/04/13 10:03 am

I bet it is considered evidence and so is acceptable in court providing there is a search warrant. The logic being that it is the same as writing it down on paper.

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Zod Above Pugetropolis
11/04/13 10:07 am

What if it is written in code on paper? Can you be compelled to translate it for them?

pisomojado
11/04/13 1:13 pm

Probably not, but even if they did, would they trust you?

rcgrant south carolina
11/04/13 10:01 am

seems to me once you write it down or ented it onto a hard drive you kind of admitted some guilt. however if it is encrypted and they can't crack it no way I would for them guilty or not