January 21, 2008, - 1:42 pm

Interesting: Your Encryption Password Now a Fifth Amendment Right

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.

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11 Responses

I kind of think that those that do the most screaming about privacy are the ones that have the most to hide. It would take the entire population of China for there to be a fear that all our phone conversations are being monitored. Same thing with computers. This one admitted that there were files that were child porn. What do you expect the government to say. The red flags went up, he raised them.

John Cunningham on January 21, 2008 at 2:24 pm

I have never been a fan of the blood, fingerprints, and hair being available for the asking. All of these — to me — are testifying against yourself.
I hope this stands. I am sick of the government getting to take what they want for any reason. Sick of it.

Mark L. Jackson on January 21, 2008 at 3:44 pm

As to the “most to hide” nonsense; good thing the Founding Fathers understood that EVERYONE have things to hide, not all illegal.
I personally find it disgusting that some think that the “if you have nothing to hide” canard is an argument for freely searching people and forcing them to give up that which is theirs.
What is happening in America? I have no problem with listening to openly sent transmissions, but I draw the line at the governemnt getting to listen in on coded transmissions or look at files that are protected just for the hell of it. They are protected for a reason, and the reason DOES NOT matter. It’s private. FFS people, when does it stop?

Mark L. Jackson on January 21, 2008 at 3:50 pm

The philosophy of state control of decisions taking priority over individual freedoms, is the core uniting principle behind socialism. The Bill of Rights are the first ten amendments to the United States Constitution. They were ratified and became the Bill of Rights in 1791. These amendments limit the powers of the federal government, protecting the rights of all citizens, residents and visitors on United States territory. Among the enumerated rights these amendments guarantee are: the freedoms of speech, press, and religion; the right to keep and bear arms; the freedom of assembly; the freedom to petition; and the rights to be free of unreasonable search and seizure; cruel and unusual punishment; and compelled self-incrimination.
Both Democrats and Republicans are responsible for the erosion of our constitutionally guaranteed rights. This is yet another step towards a socialist nation. Enough already! The bureaucrats can legally seize the suspicious property at the border. But the border agents should get off of their lazy butts and crack the code without further erosion to the basic freedoms of every American. This is a prime example of bad law being made by bad bureaucratic decisions.

ParaLyzer on January 21, 2008 at 4:53 pm

I wonder if there are any precedents relating to combination locks. If a person has documents in a safe to which only they know the combination, does the 5th ammendment protect them for having to divulge it?
To make the analogy more precise, the safe would have to be effectively unbreakable-into, for instance, via a mechanism that would destroy the contents if any intrusion (such as drilling) took place.

photoncourier.blogspot.com on January 21, 2008 at 6:53 pm

Debbie, I forget, was it Abraham Lincoln or Frank Rizzo that said don’t write anything down, or words to that effect. I’m the opposite of a computer geek, I don’t know what the government can do to decode encrypted information.
Mark Jackson, I think it’s a canard or bogus to say everyone has something to hide. We’re really only talking about this person that admitted that there were files that are labeled child porn. He busted himself. I wouldn’t want someone to see my bank account, not that there’s all that much, but, if after a lengthy undercover investigation that gives the government reason to suspect I might be hiding ill gotten monies, unless I stuff it in my mattress, the government is going to start sniffing around my bank. I really don’t think everyone has something to hide. I think those that hide things feel that if they’re doing it everyone else is doing it. Something like “thou protesteth too much comes to mind”.

John Cunningham on January 21, 2008 at 7:36 pm

not just ‘hard’ but *impossible*
if a person is using ‘strong encryption’
(eg. PGP, GnuPG, TrueCrypt, etc.)
there was a case of a Mafia person using PGP,
where the government had to resort to putting in a keylogger on the suspect’s computer, in order to get the information.
if a computer is seized, and it has encrypted files done with PGP, GnuPG or TrueCrypt,
and the keys or keyfiles are not in the computer,
as far as anyone knows today,
it ‘cannot’ be decrypted by ‘any’ government experts.
if you want to read more about this type of strong encryption, here are the official sites:
in keeping with the computer geek traditions that knowledge should be free,
these programs are both free and open source
(i.e. anyone can examine how the program was made,
and even custom modify it)
‘strong encryption’ is sort of like the computer culture’s equivalent of the NRA/right to bear arms,
and they are ‘very serious’ about it

exdemexlib on January 22, 2008 at 10:36 am

I could not agree more M.L. Jackson, I cannot believe how most Americans just laugh at the Constitutional principles that this country was founded on, that is , until the Government comes after you.
I do not have anything to hide but it is none of the Governments business what is on my computer or what I am saying on the telephone. I do think giving up my password is self incrimination.
They already monitor our computers, internet and telephones with impunity via Carnivore, Echelon or Magic Lantern.
When I was in Law Enforcement, detectives never had the Telephone company ask for a warrant, before instigating a “tapî, never! (I was personally outraged over this but I was naive)
They just flipped the switch at the telephone companies switching station for the numbers requested. The only time they actually got a warrant for monitoring a telephone was when they were going to prosecute so they could show the Courts they did it properly with a Judges signed court order.
There is no privacy when it comes to telephone communications despite what the Constitution says about search and seizure. The agency I worked for was not alone in doing this type of surveillance; they all do it including the FBI.
We have lost so many of our liberties and freedoms because we have not been vigilant while the Government is taking them away incrementally.
BTW-PGP has not been broken to best of my knowledge so if he used that they will never get the info without the pass.

ScottyDog on January 22, 2008 at 6:27 pm

Suppose that I have my computer encrypted, the police want in the computer to gain access to evidence that WILL convict me. They are trying to ORDER me to give over my password and I am refusing.

That is the gist of the case.

Now, I am for the ruling. In order for the government to “get the password” they would have to torture the man, which is the PURPOSE of the 5th amendment. If the torture it out of me, then I have just given them to tools to convict me, thereby testifying against myself and incriminating myself in the process. For them to punish me, put me in prison until I give out the code is also wrong, as again, they are using FORCE.

You HAVE THE RIGHT TO REMAIN SILENT. The right to speak or not to speak PRE DATES the constitution, it is an NATURAL right, not a right granted by government.

I am sorry, but you are 3000% wrong in your view.

Matt on December 7, 2009 at 6:38 pm

“I think it’s a canard or bogus to say everyone has something to hide.”

John Cunningham, do you mean to say that when you go to the bathroom and do your business, you don’t mind if people watch? What about when you have sex? What about reading your diary or personal memoirs? What about watching porn and/or masturbating?

Although I may not have all the nitty-gritty details of what occurs when you go into a bathroom stall after eating too many spicy peppers with your tacos, I have a fairly good idea. But most people still don’t want people to watch.

That desire for anonymity, even though people have a good idea of what occurs, is called privacy.

John Smith on December 22, 2009 at 11:57 pm


jjjjjjjjjjjjjjjjjjjjjjjjjj on December 12, 2013 at 12:59 pm

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