January 21, 2008, - 1:42 pm
By Debbie Schlussel
Just what constitutes a Fifth Amendment right against self-incrimination?
Courts have ruled that, for example, hair and blood samples and fingerprints are not covered by the Fifth Amendment. If law enforcement properly asks for them (ie., subpeona), you have to pony up.
But now a federal magistrate (the glorified equivalent of a clinician with no special knowledge or skill to be a judge; and not appointed by the Prez or confirmed by the Senate) has ruled that your computer encryption password is, in fact, covered by the Fifth Amendment and you can refuse to give it out in exercising your right against self-incrimination. It’s being appealed to an actual federal court judge, as it should be. But it’s in U.S. District Court in the People’s Republic of Ben & Jerry a/k/a Vermont, so I expect it’ll be upheld by the judge.
While I’m not strongly for or against this ruling (I don’t like government coercion and invasion of privacy, but if it involves stopping a terrorist plot against Americans, all bets are off), I’m surprised by it, as authorities can legally obtain the contents of your computer through various means, including enlisting a techie with the ability to decode or de-encrypt encrypted files. And, in a civil suit, the contents of your computer can be obtained via discovery–if you refuse to compy, you can be fined or jailed for contempt. In my mind, that makes the ruling sort of irrelevant.
But the facts of the case are interesting. It involves a Canadian citizen and legal U.S. resident stopped by Customs and Border Protection and investigated by ICE at the border. They noted that his computer (he admitted it was his) contained files with headings strongly indicating it was child porn. But they could not get into the encrypted files.
Some experts say he gave up his Fifth Amendment rights:
“The consequence of this decision being upheld is that the government would have to find other methods to get this information,” said Marc Rotenberg, executive director of the Electronic Privacy Information Center. “But that’s as it should be. That’s what the Fifth Amendment is intended to protect.”
Mark D. Rasch, a privacy and technology expert with FTI Consulting and a former federal prosecutor, said the ruling was “dangerous” for law enforcement. “If it stands, it means that if you encrypt your documents, the government cannot force you to decrypt them,” he said. “So you’re going to see drug dealers and pedophiles encrypting their documents, secure in the knowledge that the police can’t get at them.” . . .
Orin S. Kerr, an expert in computer crime law at George Washington University, said that Boucher lost his Fifth Amendment privilege when he admitted that it was his computer and that he stored images in the encrypted part of the hard drive. “If you admit something to the government, you give up the right against self-incrimination later on,” said Kerr, a former federal prosecutor.
Lee Tien, senior staff attorney at the Electronic Frontier Foundation, a civil liberties group, said encryption is one of the few ways people can protect what they write, read and watch online. “The last line of defense really is you holding your own password,” he said. “That’s what’s at stake here.
So, what do you think? Is an e-mail account password equivalent to the right not to speak/testify, pursuant to the Fifth Amendment?
It seems to me he admitted what was on there and that it was his computer, kind of like when an attorney asks you questions, which you answer, and then it’s too late to assert the Fifth Amendment, once you’ve gone down that road.
But is it that hard to dis-encrypt something that an expert can’t do it after a few weeks? Apparently so, or I doubt this case would go as far as it has.
Tags: actual federal court judge, attorney, civil liberties group, computer crime law, Debbie Schlussel Just, Electronic Frontier Foundation, Electronic Privacy Information Center, Encryption, executive director, federal magistrate, federal prosecutor, FTI Consulting, George Washington University, judge, law enforcement, Lee Tien, Marc Rotenberg, Mark D. Rasch, S. Kerr, Senate, senior staff attorney, technology expert, U.S. District Court, United States