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Discussion in 'Civil Liberties Issues' started by TBO, Jan 24, 2012.
So what's the worst consequences if you refuse to decrypt? I guess you would have to decide if what you have encrypted is going to get you more or less time in the pokey.
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Blackburn can get stuffed!
It must be maddening for the law enforcement to have citizens who can hide something from them.
It's been so long I no longer remember the password. And, of course, I never wrote it down as a backup.
Encrypt whole drive with Truecrypt, and create a hidden volume.
What about Criminals hiding something?
As long as there is a law against it, criminals won't hide anything. Eh?
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I dislike the idea of criminals getting of a technicality, yet I see little difference in a person that uses the 5th amendment to not incriminate themselves by not providing statements that would later be used against them and not providing a password to access information that can later be used against them. My impression of the amendment is the idea of getting the accused to participate and assist in building a case against them. <?xml:namespace prefix = o ns = "urn:schemas-microsoft-comfficeffice" /><o></o>
I dont like it one bit if it helps a dangerous person avoid justice, but I understand how one should not be expected to help authorities to build a case. <o></o>
If you had the proof of their crime, you wouldn't be so eager to read the data from their laptops. So we should use the word "suspects", not "criminals" at this point.
Naaaaa, many are criminals regardless of the amount of evidence that can be gathered (and is admissible) and what is proven in a court of law. There are criminals out there that have evaded justice and continue to harm others, lack of a conviction doesnt change what they are it just changes what the courts/law can call them.
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Texas Penal Code:
If he refuses to divulge the password, is he not effectively concealing the evidence?
If the accused produces documents that incriminate him, isn't it effectively "being a witness against himself"?
Me and you may call them criminals. The law enforcement may not call them criminals or treat them as such. Those are the rules. And, contrary to a popular opinion, those rules were not made to protect the criminals.
A suspect has a safe, the prosecutors want to see the contents. The suspect says I will not assist you in gathering evidence against me by providing the combination.
The best safe cracker in town fails to open the safe, can he be forced to provide the combination?
I don't see how it's any more providing testimony against yourself than opening the door to your house when the search warrant shows up. The evidence is what's inside the house/laptop, not your having the key to the door. And if you're concerned that the jury will know you had the key, then we just won't tell them that.
Yes. The 5th Amendment protects you against testimony. It's not a protection when you're subpoenaed to produce records, no matter how bad those records make you look. And in this case, the owner wasn't actually ordered to provide the key, she was ordered to provide the records stored in the safe. The exception is when there's doubt about the ownership of the safe/laptop and the records in it. That's not in play in this case; ownership isn't in question.
Related, from http://volokh.com/2012/01/24/encrytion-and-the-fifth-amendment-right-against-self-incrimination/
"If the police have a warrant to search the defendants office for documentary evidence of a criminal fraud and find a locked file cabinet, the warrant reaches the contents of that cabinet. Issues about: (1) expectation of privacy in a locked cabinet; or (2) proof of what the government believes is in the cabinet are now irrelevant issues. Whatever may be inside is reachable by the police because they already satisfied the Fourth Amendment and got a warrant. This is true even if the cabinet contains evidence of a wholly separate crime, like possession of child pornography."
So, it would be a valid defence if the accused pleaded the Fifth in response to the question "Do you have the encryption key to the files on your laptop?"?
Not yet. You can just get locked up. Give it another couple years and then they will be water boarding US citizens on US soil.
Sometimes I wonder about that, personal knowledge doesnt seem to support it. <?xml:namespace prefix = o ns = "urn:schemas-microsoft-comfficeffice" /><o></o>
Nonetheless, I do believe there is little difference in this particular instance, an individual being required to provide a password or to facilitate information that is encrypted would be no different than providing a statement that would incriminate themselves. Either way, it would constitute assisting the prosecution in building a case against them. If discovery of that information is obtained without the active assistance of the person, then that is a different story.<o></o>