[SpicyLemonZest]

They can't require you to personally admit to it, but if they know about a notebook where you wrote it they can require you to give up the notebook. (The rule makes more sense if you think about it in terms of financial crimes; it'd be hard to ever prosecute someone for fraud if they didn't have to give up their books.)

[belorn]

Using the same logic, they could subpoena the grave that the body is buried in as the existence of such grave is a forgone conclusion (a shovel and dirt found in the car, a hole in the ground must exist) and thus would not be a testimony. The accused in that case is also a witness in that they witnessed the grave where the body rest. If they lead the police to a different hole then analyze of the dirt can prove contempt of the court.

The rule make very little sense. I would not bet in favor of it continuing for long. The whole idea that the prosecutor is only asking for the container and not the content was extremity transparent to begin with, and judges who have rejected that argument have said just that. In that case the conclusion the judges made is that a request for the container (ie the unencrypted device) is the same as a request for the information itself, and thus should be seen as such.

[SpicyLemonZest]

There's no pretense that the prosecutor isn't asking for the content. Of course they are. It's just not a Fifth Amendment violation for the government to look at content you've written, even if that content incriminates you.

[belorn]

Asking an accused to provide that content directly is tantamount to testimony, as the Eleventh Circuit concluded. To quote: "the decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files."

It all comes down to the duck test. Is the request for the decrypted container similar as asking directly for the content to be written down by the accused, or spoken about in the form of a testimony? Does it has the same purpose and the same result?

[dsfyu404ed]

So if they already have a pretty darn good idea you murdered someone and the government asks you where the body is and you refuse to tell them and they lock you up then that's not a 5th amendment violation?

In the hard drive case and the hypothetical body location case the government is trying to compel speech that directly leads to incriminating evidence. That seems like a solidly 5th amendment issue to me.

[manfredo]

> The rule makes more sense if you think about it in terms of financial crimes; it'd be hard to ever prosecute someone for fraud if they didn't have to give up their books.

I don't think these two situations are the same. When you run a business there are legal requirements to retain data, and provide that data when audited. The police telling you to tell them were you placed a notebook doesn't seem like an equivalent situation. And how can the police prove you wrong if you say you forgot where you placed it? In fact this is what the defendant alleges:

> A judge ordered Rawls to decrypt the hard drives. In its recent ruling, the 3rd Circuit Court of Appeals described what happened next. Rawls "stated that he could not remember the passwords necessary to decrypt the hard drives and entered several incorrect passwords during the forensic examination."

https://arstechnica.com/tech-policy/2020/02/man-who-refused-...

[sjy]

> And how can the police prove you wrong if you say you forgot where you placed it?

By producing other evidence that suggests that you’re lying (eg. metadata or witnesses suggesting that you recently entered the correct password). In this case the judge had to reject Rawls’ claim of lost memory in order to find him in contempt. Maybe the judge’s finding of fact was wrong, but that’s not what the case is about now.

[manfredo]

> By producing other evidence that suggests that you’re lying (eg. metadata or witnesses suggesting that you recently entered the correct password).

People have forgotten passwords in a matter of minutes in some cases. Not to mention, this guy has been held in prison for 4 years. Plenty of time to forget a password. Forget the password to an encrypted drive is a life sentence?

[xeromal]

What if you don't give up your books that you're legally required to keep? What happens? How did they get them?

[manfredo]

My point is a company handing over books is not the same situation as the police commanding you to tell them where you put a journal. A company's financial records are something they are specifically required to keep and provide by law. If they don't have their books in their possession then they're in violation of the law. The government doesn't even need any suspicion, any company can be audited.

[tsimionescu]

The GP's point was that, if the bar for the 5th amendment is that you may be required to provide testify against yourself as long as the government already knows the piece you are required to testify about, it's not clear how that wouldn't apply to you being required to admit your guilt when the government has sufficient evidence that you are guilty.

I'd also note that giving the government your books is required by financial laws as a condition do being allowed to do business, it's not testimony or your general obligation of cooperating with an investigation.

[wahern]

Generally speaking, any non-testimonial evidence entered into court must be backed by a witness testifying to the nature, content (e.g. literally reciting the incriminating parts), and origins of the evidence. And that person has to have had a proper relationship to the evidence to do so, which is usually the person with the most direct and close relationship to an item or act. For example, if you want to enter verbal statements into evidence, the best and proper person to testify to them is usually the person who made the statement, not a listener.

Another way to look at it is that the only real evidence in court is witness testimony; everything else is just window dressing. Thus we have the Fifth Amendment: "[no person] shall be compelled in any criminal case to be a witness against himself."

How does that get turned into a rule that a defendant can't be forced to divulge information outside court? Because to be admissible in court such information would normally require the defendant to be a witness. If it's not admissible then there's no legitimate basis for the state to compel an act. That leads to two corollaries: 1) if the person isn't a defendant, or is given immunity, he would never be required to be a witness against himself (just a witness against someone else), and thus the Fifth Amendment isn't implicated; 2) if the evidence obtained from the information would be admissible without the defendant's testimony, the Fifth Amendment likewise isn't implicated.

#2 is the case here. Because the government can already show ownership of the hard drives through other witness testimony (e.g. testimony of a relative, purchase receipts, etc), it would be categorically unnecessary for the defendant to testify in court to the incriminating act of divulging the password. However, if for some reason it later turned out that the government couldn't show ownership independently, then of course the hard drives would be inadmissible; not because of the forced password disclosure, per se, but simply because the defendant himself couldn't be compelled to be a witness to his act of divulging the password--an investigator couldn't testify that the defendant disclosed the password as that would be hearsay.[1] But such a turnaround is rare as a court won't compel disclosure unless it's clear there's ample independent and admissible evidence of ownership.

[1] There are lots of exclusions and exceptions to hearsay, especially regarding defendant admissions, but they're disallowed if they would effectively nullify the spirit of the Fifth Amendment if permitted for compelled acts. If you're a strict textualist, as most conservative-leaning people believe themselves to be, then one would presumably be okay with permitting those exceptions, particularly those exceptions which existed at the time of ratification of the Fifth Amendment.

[throwaway17_17]

I have a very strong suspicion that most of the Circuit courts are not going to follow this analysis. Based on the continual erosion of individual applicability of the 4-6 amendments, I would say the more like argument and opinions will focus on distinguishing these types of cases (forced decryption) from testimonial precedent. They will then proceed to, or try to, align the context with the clearly allowable compelling of DNA, fingerprints, physical appearance and other visual identifiers.

I don’t particularly like that train of thought, but given (for example) the higher court’s willingness for the sentence “I want a lawyer, dawg” to be a request for canine companionship and not one asserting a 6th amendment right to counsel, I don’t think I’m wrong.

[wahern]

Maybe I'm misunderstanding you, but my analysis justifies the legitimacy of forced disclosure, at least in similar situations [EDIT: as I assumed]. And that's exactly why I agree with you that eventually the rule will be firmly established that forced disclosure of passwords is lawful.

I think some courts have been squeamish about forced disclosure, sometimes because they hold a more liberal interpretation of the Fifth Amendment that relies on broader principles, sometimes because the situation is often far more complex and uncertain (if not completely incomparable to the hypothetical context I relied on) and they rightly err on the side of protecting the defendant's rights.

In this [EDIT: hypothetical] case I believe this analysis is the correct one, not just because of the text but also the purpose and history of the Fifth Amendment. It's not the proper vehicle to push other principles and legal theories that would restrict such forced disclosure. I lean rather liberal when it comes to constitutional interpretation, but at the same time rights built on sand aren't rights you can rely on. The law in this area seems muddy and precarious precisely because the liberal narrative is too incoherent. (Note: The liberal narrative in this case--that forced disclosure of a password is categorically barred, notwithstanding the intricacies of the rules of evidence--isn't politically partisan. Thus my subtle dig at contemporary conservative constitutional interpretation, which is often incoherent itself.)

EDIT: To be clear, in the case discussed in the article almost everything is more complicated than the simple hypothetical. I was responding at a point in this thread where the discussion already had become abstract.

[throwaway17_17]

I think we are agreeing on the end result, I was just suggesting that I don’t think the courts are going to be keen delve into 5th amendment intricacies and how speech may be compelled. I was just offering what I think will be the path of least resistance in the opinions in this area. I think your argument and reasoning is sound, I just think the courts are going to dodge any discussion of that by deciding prematurely that this area is like DNA(in the context of forced blood draws) and just rule, punting on the reasoning you put forward.

An unecessary personal detail: I wouldn’t describe myself as leaning liberal on constitutional interpretation (although all my Writs would lead one to assume I am firmly in favor of it), I certainly see myself as a die hard centrist in this area.

[sjy]

This doesn’t sound right to me. As you point out, admissions are an exception to the hearsay rule. They are routinely admitted as evidence in cases where the defendant later retracts the admission and pleads not guilty. There is no Fifth Amendment violation or calling of the defendant as a witness for the prosecution.

I have never seen any authority for the view that the Fifth Amendment was intended literally to prevent the accused from being called as a prosecution witness at trial, as opposed to creating a general privilege against self-incrimination. For example, in Brown v. Walker (1896) [1], an early Fifth Amendment case, the Supreme Court said:

> the States, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim which, in England, was a mere rule of evidence became clothed in this country with the impregnability of a constitutional enactment.

[1]: https://supreme.justia.com/cases/federal/us/161/591/

[baddox]

> it'd be hard to ever prosecute someone for fraud if they didn't have to give up their books.

I'm pretty sure it's relatively simple for police to break into offices and take financial records. I would imagine it happens relatively often, because simply asking a suspect to give up their books seems more likely to result in them attempting to hide or destroy their books.

The reason police and prosecutors don't like encryption is because they can't use violence to acquire what they want, at least directly. They need new (or at least specifically-clarified) laws about what they can do to you to make you decrypt your data.

[throwaway17_17]

I would say that police use ‘violence’ to acquire what they want all the time and the de-encryption of data is potentially no different. It would be a foolish mistake to ignore the State’s monopoly on force. While there is certainly a difference between the threat of violence and the application of violence, it is more the general ability of the State to utilize force for those aims society has agreed are within the State’s remit. While it may not be ‘violence’ per se, detention and deprivation of freedom are certainly applications of force and said detention is often preceded by actual violence to secure an individual for that detention. I am certain that periods of detention are enough to make a decent percentage of even the most principled individuals turn over their data. It is clear game theory, if I can be held for multiple rounds of incarcerations while keeping the data, but I can reasonably expect some determinate sentence from something in the data, is the trade-off worth it? Law enforcement doesn’t need the clarity of law, individuals need clarity of law to restrict those officers.

[cryptonector]

It's called rubber hose cryptanalysis for a reason. Holding you in prison at all (let alone indefinitely) requires violence. Violence is applied to get the defendant to reveal their decryption keys.

[ajross]

> attempting to hide or destroy their books

This is precisely why "Obstruction of Justice" is a criminal offense with severe penalties available. The question then becomes: is deliberately encrypting and refusing to provide access to those books obstruction?

I know the folks here would argue otherwise, but IMHO it's not at all a clear argument legally. The original reasoning behind the fifth amendment was that without that protection the government would be tempted to use coercive tactics to induce a false confession. It's designed to prevent the torture of accused witches, not to be a literal get-out-of-jail-free card for crypto nuts.

[Dylan16807]

> is deliberately encrypting and refusing to provide access to those books obstruction?

Since email deletion policies aren't obstruction until you're told to suspend them, there's no way an encryption policy is obstruction.

> to be a literal get-out-of-jail-free card for crypto nuts

Pff. It's not like simply not writing things down is a get out of jail free card.

[thatcat]

To not encrypt your books for a business would be negligence; I assume you leave all your valuable information as clear text for the convenience of future investigations?

[ajross]

I wrote "is deliberately encrypting and refusing to provide access to those books obstruction?". And again, I don't think that argument is anywhere near as clear cut as you want it to be. The fifth amendment, again, is intended to prevent torture, not to prevent the collection of evidence in a criminal investigation.

So technicalities like you're invoking (is refusing to do something "obstruction" or not?) need to be balanced against technicalities on the other side (is providing a decryption key "testimony"?). And when courts have had to make decisions like this they've almost always done it by splitting the difference in some way instead of finding an absolute interpretation on one side or the other.

[thatcat]

Oh, after the fact? I would agree that is definitely obstruction. Before the fact - maybe for business, but not for personal. 5th amendment is to protect against forcing someone to provide evidence against themselves whether that is through torture or coercion, it does not matter.

[ajross]

But again you face the technicality: is providing access to already-existing documents "testimony" in the sense the fifth amendment intends? You can't torture someone into producing documents that don't exist, obviously! Nor is going to jail for obstruction of justice "coercion", effectively by definition.

I'm not saying I disagree with you in principle, I'm saying that very reasonable courts might not. This isn't a cut and dry argument, at all.

[bobthepanda]

> I'm pretty sure it's relatively simple for police to break into offices and take financial records. I would imagine it happens relatively often, because simply asking a suspect to give up their books seems more likely to result in them attempting to hide or destroy their books.

No, this requires a warrant in the US for it to be lawfully used as evidence.

It's worth noting that the defendant in question was told to unencrypt the devices by the courts, which is pretty much in effect the same thing as a warrant, so it's not as if the government was torturing him to decrypt the data; the court had already decided it was material evidence in a case.

[upofadown]

This is encryption we are talking about. The government is asking the suspect to find one key in a vast key space. So the actual question would be; can the government force the suspect to find the notebook for them if the only thing the government can prove is that the notebook exists some place where the suspect has deliberately hidden it?

[Johnny555]

but if they know about a notebook where you wrote it they can require you to give up the notebook

But if you wrote in a made-up language that only you know, can they force you to translate it?

[Ntrails]

How would you know the translation was accurate if it was done?

[Johnny555]

Good question, similarly how do you know the right encryption key was given, maybe there's a hidden volume that you can only see if you have the right key.

[specialbat]

How do they know you didn't lose or destroy the notebook?

[joering2]

Which of course is not how justice works, at least in USA. Here you are innocent until proven otherwise. Mere decline to produce a notebook (with or without evidence of crime in it) is in no way shape or form an admission of guilt or a proof of itself good enough to find you guilty. Look no further than the most important case of modern history - impeachment of Donald J. Trump. During Senate hearing Mr. Trump’s lawyers argued how important it is to forbid judges and juries from finding someone guilty merely on fact they invoked their fifth ammandment right. At the end Mr. Trump was acquitted in part based on this defense. And what’s good for a President of the country that is a beacon of justice and freedom, cannot be less good for an average Joe Doe.

[throwaway17_17]

As a semi-counter-point: 1) the argument, made by every criminal defense attorney in trial ever, that a jury can not infer anything from a defendant’s exercise of his/her 5th amendment right to remain silent is basically pointless. Juries, and individual jurors in the vast majority, do not buy it, they don’t accept it as the law in their minds, and they certainly factor it into deliberations;

I in no way want the following to appear that I have an opinion as to anything regarding Trump’s anything, but

2) Trump was acquitted because of the way the US impeachment process is set up, if I am sure of anything, it is the fact that no votes to acquit where based in any way on Seklow’s arguments about presumption based on the 5th amendment.

[joering2]

Politicans who found Mr. Trump not guilty have stated its in part because of lack of evidence otherwise. Everyone welcome to keep downvoting, but I will remain certain in USA you are innocent until proven guilty. You don’t have to prove your innocence. And many cases - even the big ones like Casey Anthony, OJ, Zimmerman, now Weinstein - prove that fifth amandment works.

[nulbyte]

You are not innocent until proven guilty; you are presumed innocent until proven guilty beyond a reasonable doubt. You are guilty, or you are innocent, from the beginning; only, we admit uncertainty in the presence of reasonable doubt, which evidence and argument need erode to prove guilt.

[cgriswald]

I'm afraid it's not quite so absolute. Consider a murder case in which the defendant admits to killing a person, but pleads self defense. It is certainly a fact that he killed the person, but whether it was self defense or not (i.e., whether he is guilty or innocent) depends entirely on the interpretation of the law and the events that occurred. Absent a finding of law, his guilt or innocence simply can't be established. If we hold the presumption of innocence and the absolute idea that he either is guilty or not, then we would have to conclude he is innocent, rather than taking the more rational view that we simply don't know.

[rootusrootus]

Impeachment isn't a criminal trial.

[throwaway17_17]

While this is true, there is no dispositive ruling on the totality of criminal procedural law as it applies to impeachment. The 1936 impeachment of Judge Ritter was the first point a defendant in an impeachment trial appealed to a court to assert his procedural/constitutional rights had been denied by the Senate. It is clear there are procedural requirements the Senate must honor, but the full extent is not clearly defined. For a decent review of the area as it stood in 1993, prior to the Clinton trial, see [0].

0 —> https://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi...

[anigbrowl]

If you're innocent, why are you taking the Fifth Amendment? The mob takes the Fifth.

[zimbu668]

This explains why an innocent person should take the fifth: https://www.youtube.com/watch?v=d-7o9xYp7eE

[tedunangst]

Taking the fifth in a courtroom is rather different than not talking to police without a lawyer.

[cryptonector]

The two are related. In practice no indictment will issue if the prosecutor doesn't think they can win without the defendant's testimony, and in practice the defendant's statements to police are used to impeach them at trial (because the hearsay rule allows that hearsay) and thus make a part of the case just as much as if they made those statements in court, in the witness box. No case -> no trial, no trial -> definitely no testimony.

Watch that video. Then watch it again. Schedule a yearly watching or three.

[pdonis]

> If you're innocent, why are you taking the Fifth Amendment?

Because innocent people do get wrongly convicted. If you don't want to be that innocent person, you might have to assert your rights, including your Fifth Amendment rights.

Note that the Fifth Amendment does not say that you can't be forced to incriminate yourself, as many TV courtroom dramas wrongly imply. Statements like "the mob takes the Fifth" are based on that kind of incorrect reading of the Amendment.

The Fifth Amendment actually says that you can't be forced to be a witness against yourself. A witness can provide testimony that looks incriminating even if the defendant is actually innocent, and such testimony can lead to an innocent person being wrongly convicted. The Fifth Amendment is there to help reduce the chances of that happening.

[anigbrowl]

Thanks for taking time to answer properly, and I agree wholeheartedly.

My post was above was a bit naughty, as I was quoting the current president (in response to a post discussing his recent impeachment) without revealing that it was a quotation.

[joering2]

Because anything you say may be used AGAINST you in the court of law. Nothing you say can be used to help you.

[anigbrowl]

It was a little underhanded of me to write that without quotation marks, but the words I posted above were famously uttered by the current President in 2016, when criticizing someone else for relying on the 5th amendment. My point is that his idea of justice is actually extremely variable depending on what benefits him at any given time.