[19guid]

The answer is probably no.

Requiring a person to unlock a device is not prohibited by the Fifth Amendment simply because the device contains incriminating information that would otherwise be inaccessible to police.

If the police have a valid warrant to search your safe, you are generally required to unlock it for them, even if the safe contains evidence that incriminates you. If you are issued a valid subpoena to produce certain documents in your possession, you are generally required to produce those documents, even if they incriminate you. Compelled decryption of hard drives is fundamentally no different.

It is true that the act of unlocking the safe or producing those documents is itself testimonial in the sense that you are conveying the fact that you know the combination or possess those documents. But under the "foregone conclusion" doctrine, if the state already knows that implicit testimony, then it is not protected by the Fifth Amendment. It's obvious that Rawls knows the password to the drives.

There are legitimate concerns about how search warrants should apply to electronic devices. However, these are Fourth Amendment issues, not Fifth Amendment ones.

If you're interested, Orin Kerr from the Volokh Conspiracy has written several articles about compelled decryption, including with respect to this particular case [1, 2, 3].

1: https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...

2: https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...

3: https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...

[DINKDINK]

What checks exist to prevent police from planting a USB hard drive on an enemy of the state that's encrypted and then claiming the defendant won't decrypt the hard drive? The state would have a really easy time imprisoning him/her because the defendant would never be able to provide a key to decrypt it.

[PeterisP]

The check there is the judge and jury, which could be convinced by the defense that this is not their hard drive - unlike the case of Francis Rawls, where they haven't even attempted to contest that he knows the password. They haven't claimed that they are unable to perform the action, they're simply refusing to do it (and unsuccessfully contesting that they don't have to do this), so that's contempt.

It's kind of counterproductive to assume a singular agent "the state" in this context - all legal checks and balances essentially rely on multiple, separate, competing agents of the state controlling each other, separation of powers and all that. If police and all the judges are both on the same corrupt side then there's nothing stopping them from convicting you for murder of Abraham Lincoln and locking you up indefinitely for that, but we're working off of the assumption that this is not the case.

[hvidgaard]

Nothing but morale prevents it, just like planting any other evidence.

[DINKDINK]

I'd say though that if a judge can get a free pass to lock anyone away indefinitely by police planting a USB drive -- by claiming the defendant is in contempt of court -- that's drastically different in terms of payoff on evidence planting.

Planting a gun on a defendant is much harder to do than planting a USB drive. If it really was the defendant's, they probably have munition for it, there's biological contamination etc.

It seems to me there should be an onus on the prosecutor to prove that they defendant has the key and isn't giving it up before the defendant is held in contempt of court: "Here's a video showing the defendant access the banned booked on the USB drive, she won't give up the USB-decryption key!"

[RSchaeffer]

Thanks for sharing Kerr's articles! I wasn't familiar with this issue, so I read them, and in my opinion, I think he's dead wrong (and the 3rd Circuit ruling). The argument that by disclosing his password, Doe is only admitting, "I know the password," which is a forgone conclusion, is nonsense. That statement necessarily carries with it a number of additional statements, including "Very few other people (if any) also have this password" by virtue of what a password is, and "I have read/write access to this hard drive," which when coupled with the previous statement, leads to the conclusion "I wrote the material on this hard drive to this hard drive." Kerr's argument is basically "Doe is only admitting to the premise" while ignoring that an entire chain of reasoning necessarily follows from the premise.

[siler]

With a safe, as with any encrypted document, there are a finite number of keys. I think that invalidates the idea of possession of the password being important, at least from a "purely lawful" point of view.

Read/write access is basically physical access. Anyone with enough resources could accomplish physical access.

It's possible I'm being paranoid, but it seems like most of law is based on series of assumptions. It isn't a purely logical idea, which is why we have so much fun arguing about it. It is fundamentally the hope of writing down logic in a language that doesn't, unambiguously, contain it.

[jsjohnst]

I think the safe analogy is an excellent way to illustrate the issue. Encrypting a file is essentially the same thing as locking it in a safe in what I believe is the ultimate "eyes of the law" once this gets fully tried.

[michaelmrose]

Encryption is nothing like locking in a safe further in a similar situation I'm pretty sure rather than going to court they just open the safe making the example even more useless.

[PeterisP]

It's a bit like the safe exactly because there's a lot of actual existing precedent where they do not "just open the safe" but require the defendant to produce the key/code to the safe; and instead of attempting to breach the safe, hold the defendant jailed for contempt if they refuse to do so.

In this particular case the authorities are explicitly arguing that there's no good reason to use a different process for passwords as they currently use for safes, and this (requiring the defendant to unlock it) is the standard procedure, not drilling the safe open.

[jsjohnst]

> Encryption is nothing like locking in a safe

Sure, to technical folks like us, but notice I said "in the eyes of the law". Furthermore, police can not open a safe without a court order, so guess your reply was a bust all around?

[michaelmrose]

Do you have a citation wherein encryption is treated like a safe or are you like most people kind of winging it?

I know they can't open a safe or for that matter a door without a court order. The point was that the comparison between forcing open a safe and forcing someone to produce a passphrase was meaningless because the apparently treacherous question of compulsion to testify against yourself wouldn't be tested when I drill could do the job.

I am not a lawyer but I know enough to know that most people in most discussions are full of it and know little. What actually is mysterious is why people believe that their nonexistent expertise adds to the discussion.

Imagine if the matter were technical and a bunch of non tech people, say the kind who get confused about ram and storage, referring to both as memory,or call the entire thing the cpu were volunteering different insights into the question at hand. It would be useless in a funny sort of way.