[thex86]

Does the Fifth Amendment only apply to US citizens? The reason I ask is this: if I am traveling to the US and the TSA asks me to decrypt my laptop or unlock my phone, am I protected under the Fifth Amendment? Well, are US citizens protected under it at the airport?

[rayiner]

There are two issues:

1) Does the Fifth Amendment apply?

2) Does the Fifth Amendment prohibit certain things?

The Fifth Amendment, like the others, generally applies to not just citizens, but legal residents and others who are on U.S. soil.

The second issue is what's interesting here. The literal text of the Fifth Amendment is:

"No person... shall be compelled in any criminal case to be a witness against himself."

Literally, it prohibits people from being forced to testify against themselves in a criminal trial. The Supreme Court has ready it very broadly to prohibit all sorts of other things, but one limit it has recognized is that it still only applies to "testimonial" incrimination. Think: testifying on a witness stand. Non-testimonial acts, like forcing someone to unlock a box, are not covered.

Some courts have held, and the EFF argues, that providing an encryption key is unlike providing the key for a box because it requires you to recount things that are in your memory, and is therefore testimonial.

[lmkg]

> Non-testimonial acts, like forcing someone to unlock a box, are not covered.

(IANAL) The example is not 100% applicable. You can only be legally compelled to open a lockbox if doing so provides no testimonial information. If there is uncertainty around whether you had control over the contents of the lockbox, then opening it would definitely provide that information. This action is therefore considered to have a testimonial component, and covered by the 5th Amendment.

You can still be compelled to open the lockbox, if doing so will not run afoul of the 5th Amendment. There are generally two ways to do so. One is that the action does not have a (non-trivial) testimonial component: If there is no doubt that you had control over the contents of the lockbox, then there is effectively no information being provided. The second way is that the testimonial component is not used against you: the prosecution cannot say that you opened it, but is otherwise allowed to use the contents as evidence (with caveats).

[derekp7]

A close analogy is: Even if you can be compelled to open a lock box, if it is filled with papers that are in an unknown language, can you then be compelled to translate those documents? That, to me, is the equivalent to providing a decryption key.

[rayiner]

I don't think it's a great analogy, because translating documents requires a wholly different level of mental involvement than simply recounting an encryption key. Note that even fishing out and providing a regular key requires some degree of mental involvement.

[derekp7]

What about providing information such as what language the document is written in? Of course, the real equiv. is if the document is written in code, then can you be required to reveal the secrets of the code?

[einhverfr]

> Some courts have held, and the EFF argues, that providing an encryption key is unlike providing the key for a box because it requires you to recount things that are in your memory, and is therefore testimonial.

I am not aware of any court in the US which has held otherwise to be honest.

There are a few cases where individuals were ordered to decrypt contents but in all those cases, it was content that the law enforcement officials had already seen on the computer.

For a parallel, there's a case before the Supreme Court which was just argued over whether the 5th Amendment protects an individual from testifying against himself in the context of a court-ordered psychological evaluation. The likely outcome is that it does unless the defendant raises an insanity defence, and then, as long as the defendant can offer evidence that he was not sane, the state gets to compel him to have an evaluation.

What I am getting at is that the 5th Amendment almost certainly both applies and prohibits, generally, forced decryption at least in the US. There may be cases, however, where the 5th Amendment does not apply because nothing new is revealed to the government that the individual has not already presented.

[JonSkeptic]

>The Fifth Amendment, like the others, generally applies to not just citizens, but legal residents and others who are on U.S. soil.

This true only once you are on the soil, not at the entry points. If you are not a US citizen, or at least granted some form of acknowledgement by the government i.e. a visa, the protections of the Constitution and the Bill of Rights do not apply to you. Again, this is true at the entry point to the US[1].

So to come back to the original example: if I enter the US as a non-citizen, can TSA or border security force me to decrypt my hard drive? The answer, with no doubt, is 'absolutely, yes they can'. In the eyes of Homeland security, if you are not a US citizen, you have no rights at the border and they will not hesitate to detain you or send you right back if you are uncooperative.

[1]https://www.aclu.org/files/kyr/kyr_english_5.pdf

[stcredzero]

Literally, it prohibits people from being forced to testify against themselves in a criminal trial.

The 5th Amendment and other parts of the constitution are taken to imply other rights. The Presumption of Innocence is one of these. (Taken to be implied by the 5th, 6th, and 14th amendment.) However in U.S. law, it is fine for jurisdictions to compromise this for certain kinds of crime. Prosecutors may not need to prove motive or intent, for example.

[einhverfr]

> Prosecutors may not need to prove motive or intent, for example.

This is true but even for strict liability crimes there may be vagueness problems unless you can show some degree of at least a very general intent.

For example consider rape. You can't imprison someone because of a totally reasonable misunderstanding of this sort, so typically you are going to have to construct consent from the view of the accused. This leads to all sorts of things like (in many/most/all? states) the nature of the relationship is relevant. If you wake a woman up with sex and she's your wife and you normally share a bed, no prosecutor anywhere is going to consider that rape, but if you move into the bed of a friend-of-a-friend you let sleep in your guest room and wake her up with sex, that will be.

These things get really complicated. My reading of the cases in the US which have ordered compelled encryption have held that there was already full testimony that the documents existed and were of a certain nature, and were decryptable by the defendant that it was solely a matter of demonstrating what was already testified to.

[stcredzero]

This is true but even for strict liability crimes there may be vagueness problems unless you can show some degree of at least a very general intent.

The problem here is that the prosecutors hold a lot of sway over how much Presumption of Innocence should be relaxed in each case, as they are the ones who advise the governments of local jurisdictions about these matters. That would be like the umpires always being on the payroll of the home team. I'm not so sure this situation is conducive to a level playing field.

[286c8cb04bda]

It won't work on Customs and Immigration. When you're talking to them you're not "in the US" yet. After that, yes, the privilege against self-incrimination is granted to everyone in the United States, citizen or not.

Caveat: The "border search exception" has some other pretty enormous holes.

[MichaelGG]

Hopefully a lawyer will chime in, but I searched this a while ago. As a US citizen, CBP cannot require you to answer any questions beyond your customs declaration. They can detain you, but you don't have to say anything; they cannot deny you entry.

As a non-citizen, I don't believe you need to answer any questions, but they may decide to just deny you entry at that point, and it could cause problems if you ever wish to return. Best idea I've heard of is to have your company encrypt the laptop before you travel and do not provide you the key until you're done travelling.

The one case I am aware of was when a CBP agent stated they saw child porn on the laptop, which the person subsequently locked. In that case a court ordered him to provide the key.

[gknoy]

Better idea: Buy a laptop when you get here, or have it shipped to you, and load it by downloading from the VPN. Upload your data before you return, and then Wipe/Destroy/Donate before crossing borders.

[jamesbritt]

One of the things I like about my W500 Thinkpad (and my Dell D830 and ilk before that) is that it is insanely easy to swap the hard drive.

If I were concerned about traveling with certain data I would use a travel drive. Swap it in before going, and, as suggested, download what I needed once safely at my destination.

Now I'm wondering if there are other ways to carry that data with me in a format that would resist inspection. For example, on an SD card inside a camera. Or on a DVD. Break up the data into smaller files and named them variations on foo.jog or bar.avi or something, and reassemble things later.

For something like that the question might be whether I could be compelled to install or copy files to the active machine for inspection or evaluation if anyone got wise.

[spartango]

Amusingly, this feature has utility for people in the US who work in defense areas (or anything covered under ITAR).

Planning to travel but got ITAR data on your disk? Better swap that disk unless you like fines and jail time.

[PhasmaFelis]

I was always a fan of renaming stuff to e.g. bzrun32.dll and moving it to C:\Windows\System32\.

[eof]

Yes in theory everyone.. not just nationals/citizens are protected by the constitution/bill of rights. But the reality is that no, there are too many exceptions to what was supposed to be a source of truth in our laws to do much more than 'pretend' we are protected by the constitution; citizens or otherwise.

[saraid216]

> Yes in theory everyone..

Um. Which theory is this? Last I checked, as an American citizen, I'm not subject to Russian law. Why are Russians subject to American law?

[dllthomas]

Russians being protected by the 5th Amendment is not an example of Russians being subject to American laws, but an example of the American government being subject to American laws.

[npsimons]

In general, the US constitution only specifies "citizens" and not "people" when it's talking about things like voting and holding office, etc. Rights (such as the bill of rights) are generally expressed as belonging to "people", not just the citizens of the US. It's also in the spirit of the declaration of independence that "all men are created equal", which would lead one to believe that they all have certain inalienable rights, citizen or otherwise. Just because the current xenophobic culture that is popular today doesn't jive with that doesn't change it. It also doesn't mean that Russians are subject to American law (at least not while in Russia), but that for things such as rights, they apply to everyone. So, for instance, some would maintain that warrantless searches, "close" to the border or otherwise, are unconstitutional no matter who they are performed on.

[rayiner]

That's a wild distortion of the use of the word "people" in the Constitution. Uses of the word "people" in the Bill of Rights must be interpreted consistently with the uses of that word in the Constitution proper. The word "people" is used only twice in the Constitution proper. Once in the Preamble:

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

Once in Article I, Section 2:

"The House of Representatives shall be composed of Members chosen every second Year by the People of the several States."

In both cases, it is clear that "people" refers to the body politic--the people who, by their consent, are governed by the United States.

[MereInterest]

I would interpret it a different way. Since the other two uses of "people" saw it necessary to clarify, then the word "people" without those clarifications must refer to people in general.

[venomsnake]

I know this is a bit offtopic but why is the obsession with the semantics and the literal text of the Constitution?

It is just words on paper created by mortal men that certainly were unable to see 200 years into the future. And with the advance of technology some parts will begin to show their age. Both the government and the citizens can do a lot of things right now that they could not foresee.

And yet the idea of the changing, expanding and clarifying it seems to be a taboo in modern US politics. People are only allowed to interpret it, but not allowed to talk about changing it.

It is as close to theology as I could not imagine. I don't know of any other country that treats its founding laws that way.

[saraid216]

> I know this is a bit offtopic but why is the obsession with the semantics and the literal text of the Constitution?

The literal text of the Constitution is the current law of the land. That's why its interpretation continues to be relevant. I'm perfectly fine with amending the fuck out of it in theory, but I can agree with most people that such amendments need to be carefully reasoned about before being enacted.

I, for one, don't consider the Constitution to even be correct. I consider it to be real. It's not really different from a man saying, "The sun comes out at night." I feel obliged to correct him, but to do that, I have to acknowledge that he said it.

> It is as close to theology as I could not imagine.

Your mistake is mostly in imagining that it is not theology. It is. [1]

Many people, most notably libertarians, have been co-opted by the refrain of "what the Founders originally meant" and "what the Constitution originally said" as a way to justify their policies.

This is made more confusing by the presence of "originalist" jurisprudential theory. [2] But this originalism is also an outgrowth of dominionism.

Libertarians would normally be expected to oppose this kind of trend, but their label was part of the co-opting. The result is that there are libertarians and Real True Libertarians, just as there are Christians and Real True Christians and Republicans and Real True Republicans (read: not a RINO).

All of this is dominionism. It's arguable that a lot of this is just a wave of echoes from the Reconstruction after the Civil War, which was unprecedented in a lot of ways (the rise of the central executive using what was unquestionably force to suppress rebellion and secession; the breaking of the institution of slavery on a national scale; the deliberate and callous humbling of the losers in the war), and merely delayed until the 1980s because of the two World Wars and Vietnam.

  [1] http://en.wikipedia.org/wiki/Dominion_Theology
  [2] http://en.wikipedia.org/wiki/Originalism

[rayiner]

You have to put the EFF's action in procedural context. They're at "Plan B." They've lost "Plan A," which was the political debate. Voters, broadly, are mistrustful of "hackers" and don't see a problem with searching computers at the border. Certainly, my mom doesn't see a problem with such searches. Now, the EFF is coming along and asking a federal judge to tell my mom and all the voters like her that they can't do what they want to do, all because of some "words on paper created by mortal men" 200 years ago. This is "Plan B." At this stage, the rules are different and more restrictive. To overcome the democratic will, you not only have to show that your point of view is better, but you have to show that this 200 year old document requires people now, 200 years later, to act a certain way. That procedural posture leads to "the obsession with the semantics and the literal text of the Constitution."

As for why this spectacle doesn't happen in other countries, it's largely because in those countries there is no "Plan B." If you lose at "Plan A" you're done. In the U.S. you have a "Plan B" because we have a judiciary that is a co-equal branch of government. Other countries have constitutional courts, but those courts have very limited jurisdiction and do not function as a co-equal branch of government. In the U.S., you have 94 federal district courts, 13 courts of appeal, and 1 Supreme Court, any one of which can declare a state or federal law unconstitutional. Moreover, unlike judges of constitutional courts in other western countries, American federal judges have the extensive powers of common law judges. They can not just declare laws unconstitutional, but force public officials to take affirmative actions to remedy violations.

The U.S. federal judiciary is, as an institution, extremely anti-democratic. It can not only defeat the democratic will of a state or even the national legislature, but do so in a way that binds all future legislatures. The power to bind legislation in the future is one that no legislature in the U.S. possesses. The obsession with "the semantics and the literal text of the Constitution" is the flip side of this anti-democratic power. The judiciary derives its legitimacy from its role interpreting the text of the Constitution. To the extent that it strays from that text, it loses legitimacy.

[saraid216]

> Rights (such as the bill of rights) are generally expressed as belonging to "people", not just the citizens of the US.

Erm. Are we reading the same Constitution? There's only one instance of the word in there and it's talking about IP ("To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"). The understanding of IP law that I've seen is that American patents don't apply internationally: they have to be converted over to the other governments' systems.

> It's also in the spirit of the declaration of independence that "all men are created equal", which would lead one to believe that they all have certain inalienable rights, citizen or otherwise.

This is the same Declaration of Independence that didn't bother including slaves and women as "men", yes? Just to be clear on what the "it" you're referring to isn't being changed by modern times.

> It also doesn't mean that Russians are subject to American law (at least not while in Russia), but that for things such as rights, they apply to everyone.

The essential claim here is that rights granted by American law apply to Russians.

What you're not saying, but perhaps are meaning to say, is that there ought to be legal structures that transcend national boundaries to apply to the entire human race and that we can in turn derive American law from such a structure such that there are situational effects at a national level. The UN, and the UNDHR, come closest to this but American law does not recognize the UNDHR as anything but a set of suggestions. Judges do not use it as a guideline. Legislators do not use it as a blueprint. (And further, the UN does not have in its membership the entire human species.)

That would make sense. It would reduce Americans' sense of sovereignty, and thus would be fought tooth and nail by the xenophobic culture you reference, but it would then make sense to talk about universal human rights.

It's funny. I've been of the mind for the past decade and a half that we need a species-level government precisely in order to achieve effects like this, but it's also specifically the people who want these effects who are most horrified at the prospect.

So perhaps that's not what you're meaning to say. Maybe you're suggesting that there's a moral Lawgiver who hands down rights and everyone should listen to Him for a change? That's what the Founders largely thought, after all.

[simonh]

> The understanding of IP law that I've seen is that American patents don't apply internationally

Of course they don't apply to other governments, they apply to the US government. The constitution, and American law, tells the American government what rights it ought to enforce or protect, within it's jurisdiction.

> This is the same Declaration of Independence that didn't bother including slaves and women as "men", yes?

It makes no such distinction. Didn't the US have a civil war over this? Which side won?

> The essential claim here is that rights granted by American law apply to Russians.

In places where American law applies, yes. Do you think they shouldn't?

[saraid216]

> The constitution, and American law, tells the American government what rights it ought to enforce or protect, within it's jurisdiction.

No, it doesn't. You can keep asserting this, but making up claims from thin air is not actually enforced law.

> It makes no such distinction. Didn't the US have a civil war over this? Which side won?

Are you proposing that we should have a feminist versus anti-feminist war? Because I'm pretty sure the anti-feminists would win that one right now.

> In places where American law applies, yes. Do you think they shouldn't?

My opinion isn't material. My questions have, aside from the philosophical digression, been about the factual ground we're upon.

Because if American law applies to foreign nationals, then Guantanamo becomes a lot less illegal. Quote passages of US Code, or other relevant law. Not your philosophical opinion, which isn't the point here. If you want to discuss what should be, then let me say that I don't even want America to exist. That's how far afield we're going if you want to know what my opinions are.

[john_b]

The original comment was asked in the context of traveling to the US. If you travel to Russia, you are most definitely subject to Russian laws.

[e12e]

> Um. Which theory is this? Last I checked, as an American citizen, I'm not subject to Russian law. Why are Russians subject to American law?

You are on Russian soil (unless you have diplomatic immunity). It would be reasonable (but perhaps not true) to assume that if you're subject to limits of law in a jurisdiction you're also privy to its protection (presumption of innocence etc).

[eof]

uh; if you are in russia you are subject to russian law..

[pavel_lishin]

Apparently, it doesn't matter if you're within 100 miles of a border: https://www.aclu.org/national-security_technology-and-libert...

[rayiner]

That page is very misleading. Not only does it wildly distort the original policy of CBP that included the "100 miles" thing, but it ignores the fact that the "100 miles" aspect has since been retracted.

All the original policy stated is that the "border search exception" to the 4th amendment did not have to be at the literal border. This was to accommodate border checkpoints in the southwestern U.S. which are for practical reasons not right at the border but a few miles inland along major highway routes.

[tedunangst]

If you're within 100 miles of the border and being questioned pursuant to a border crossing.

[breser]

You probably want to read EFF's excellent "Guide to Protecting Electronic Devices and Data at the U.S. Border": https://www.eff.org/deeplinks/2010/11/effs-guide-protecting-...

I'd expect that if CBP is asking for your encrytion key and you are not a U.S. citizen and you refuse to provide it you're probably going to be refused entry. Being refused entry isn't to be taken lightly. It may very well mean you will never be allowed entry again.

As others have pointed out it's probably better to simply not know the encryption key or to download your data after arriving. Which are covered in the guide I linked.

Your post mentioned the TSA but I'm not aware of the TSA asking for encryption keys. I'd be surprised if they ever do or have since their mandate is aircraft safety. Searching data would not likely be allowable under the search exceptions they operate under. Your concern should be towards CBP doing the search while clearing passport control/customs.

[sigkill]

This might just be a thought exercise, but I remember reading somewhere that 100 miles from the borders and 50mile radius at all port of entries the Amendments do not apply. Also, these explicitly state 'persons' not citizens or residents so in that sense you're safe.

[maaku]

Even if the 5th amendment applies, expect to be denied entry if you try to claim protection...