Re:EFF: forced disclosure of encryption password violates 5t...
by hncommenter13 on Friday July 08, 2011 @10:24PM
(#2744829)
I am not a lawyer, but note that the original article (describing an amicus brief filed by the EFF, which is essentially an argument submitted by a party not involved directly in the case) is talking about 5th amendment rights, not 4th amendment.
The 4th amendment covers search and seizure (the case of a locked file cabinet inside a home for which a proper search warrant has been obtained), while the brief is focused on the 5th amendment question--is providing a password testimonial? The key question is not whether the information on the laptop must be disclosed to the government (we assume the subpoena is proper and if the laptop were unencrypted, the government would have the right to use it at trial), but whether the act of providing the password demonstrates a key element of the crime: that the defendant had control over the laptop and can therefore be assumed to been aware of/responsible for the creation of its contents.
In other words, is providing the password a neutral fact--as in Hiibel vs. 6th Judicial District of Nevada, where the Supreme Court found a law requiring individuals to provide a name when stopped legally by law enforcement--or is it self-incriminatory?
The Supreme Court has ruled on similar questions in several instances. See http://volokh.com/posts/1197763604.shtml for a discussion from a law professor who specializes in 4th/5th amendment issues.
The 4th amendment covers search and seizure (the case of a locked file cabinet inside a home for which a proper search warrant has been obtained), while the brief is focused on the 5th amendment question--is providing a password testimonial? The key question is not whether the information on the laptop must be disclosed to the government (we assume the subpoena is proper and if the laptop were unencrypted, the government would have the right to use it at trial), but whether the act of providing the password demonstrates a key element of the crime: that the defendant had control over the laptop and can therefore be assumed to been aware of/responsible for the creation of its contents.
In other words, is providing the password a neutral fact--as in Hiibel vs. 6th Judicial District of Nevada, where the Supreme Court found a law requiring individuals to provide a name when stopped legally by law enforcement--or is it self-incriminatory?
The Supreme Court has ruled on similar questions in several instances. See http://volokh.com/posts/1197763604.shtml for a discussion from a law professor who specializes in 4th/5th amendment issues.