(June 25, 2016 at 6:04 pm)TheRealJoeFish Wrote:

(June 25, 2016 at 1:02 pm)Thumpalumpacus Wrote: Exactly, extracting a password from a suspect is a form of self-incrimination, it seelms to me.

I would argue that it's more like demanding access to a house via a locked door once you have a search warrant. The fifth amendment isn't about keeping the government from getting into places where you hide stuff (that's the 4th and 6th). Rather, it's more or less about the government not being allowed to force you to say what's in your *brain.

Given that a search log is in essence "what was on your brain", I think the defense would still hold in the circumstances you describe.

(June 25, 2016 at 6:49 pm)Jehanne Wrote:

(June 25, 2016 at 6:08 pm)TheRealJoeFish Wrote: See my comment above; I think this is a misinterpretation of the fifth amendment. An officer can force you to let them in your house if they have a warrant. So too can the officer force you to let them into your computer if they have a warrant. This is like saying "having to hand an officer a key to your storage space is self-incrimination for fifth amendment purposes." (Edited to add: if it's not clear, such an argument is specious) The password (like the key) isn't what's incriminating; it's whatever physical stuff is in the computer (storage space).

The fifth amendment is wayyyyy less expansive than most people think. TV has something to do with that.

Let's say that the guy is telling the truth, if only for a hypothetical scenario; in this case, he does not know the password.  How could he possibly give the cops something that he does not have access to?

That's a totally different question. If he doesn't know the password (if he's lost the key), then there's no way he can give it to them.  But that has nothing to do with the 5th amendment.  No, holding him indefinitely for forgetting a password is, rather, an entirely different sort of unconstitutional.

You are correct, RJF but the Divine Tiberius' original point remains valid:  Forcing him to disclose the password is a violation of the 5th Amendment no matter what sleazy tricks some scumbag lawyer tries to pull.

It is demanding a suspect to release incriminating information, as opposed to evidence.

(June 25, 2016 at 1:44 pm)Tiberius Wrote: The way I see it -- and perhaps I'm alone in this line of thinking -- presumption of innocence is important, and so is the fifth amendment.

Forcing the accused to unlock a laptop with a password for the purposes of an investigation, if that laptop contains incriminating information, is self incrimination. The test for self-incrimination should be "could the police have obtained that exact piece of evidence without the help of the accused?" If the answer is "yes", then it is not incrimination.

I would rather see 1,000,000 guilty people go free, that sacrifice the 5th amendment and presumption of innocence.

I don't have the time.e or inclination to do the legwork ATM but if you were to investigate jurisprudence in that matter, you will likely be disappointed .

My view on this is that it's analogous to disclosing a safe combination to satisfy a warrant. Search the safe all you want, but you can't compel me to help you. The difference here being that they're still going to bust the safe open, the encryption - not so much.

(June 25, 2016 at 10:59 pm)TheRealJoeFish Wrote:

(June 25, 2016 at 6:49 pm)Jehanne Wrote: Let's say that the guy is telling the truth, if only for a hypothetical scenario; in this case, he does not know the password.  How could he possibly give the cops something that he does not have access to?

That's a totally different question. If he doesn't know the password (if he's lost the key), then there's no way he can give it to them.  But that has nothing to do with the 5th amendment.  No, holding him indefinitely for forgetting a password is, rather, an entirely different sort of unconstitutional.

I would disagree; if someone is truly innocent of a crime, then they could be completely ignorant of the facts surrounding that crime.  As such, the 5th Amendment is there to protect them on cross-examination from the accusation of "feigned ignorance".

(June 26, 2016 at 4:47 am)Cthulhu Dreaming Wrote:

(June 25, 2016 at 1:44 pm)Tiberius Wrote: The way I see it -- and perhaps I'm alone in this line of thinking -- presumption of innocence is important, and so is the fifth amendment.

Forcing the accused to unlock a laptop with a password for the purposes of an investigation, if that laptop contains incriminating information, is self incrimination. The test for self-incrimination should be "could the police have obtained that exact piece of evidence without the help of the accused?" If the answer is "yes", then it is not incrimination.

I would rather see 1,000,000 guilty people go free, that sacrifice the 5th amendment and presumption of innocence.

I don't have the time.e or inclination to do the legwork ATM  but if you were to investigate jurisprudence in that matter, you will likely be disappointed .

My view on this is that it's analogous to disclosing a safe combination to satisfy a warrant.   Search the safe all you want, but you can't compel me to help you.  The difference here being that they're still going to bust the safe open, the encryption  - not so much.

If he doesn't know the password (say, the hard drives are "spoof" containers created by someone else -- maybe, an enemy of his), then how long should he remain in jail due to that fact?  Creating spoof containers is very, very easy:

1)  Download VeraCrypt.  (Just Google).  Install and follow the directions.

2)  Open notepad and close your eyes.  Type random gibberish; select 60 or so characters (I think that the limit is 64) and copy into your clipboard.

3)  Create a VeraCrypt container; copy and paste your "passphrase" from #2.  Delete VeraCrypt, run a cleaning program (to remove all evidence) and then reboot.

4)  Claim that someone whom you know and hate has child porn on their computer.

5)  Some forensics "expert" will say that the file from #3 contains child pornography.

6)  Watch & laugh as your enemy from #4 goes to jail for life.

Yes someone can easily set someone up like this, but what I want to know is should the feds really need to depend on the suspect to reveal the password, or can they, due to circumstantial evidence, legally crack open and check the data themselves? Cause it is pointless to hold him indefinitely and is definitely a violation of his rights... so either they have to let him go, or find some way of checking the evidence without his cooperation. If they can't do the later, then why bother holding on to him?

(June 26, 2016 at 10:27 am)Aoi Magi Wrote: Yes someone can easily set someone up like this, but what I want to know is should the feds really need to depend on the suspect to reveal the password, or can they, due to circumstantial evidence, legally crack open and check the data themselves? Cause it is pointless to hold him indefinitely and is definitely a violation of his rights... so either they have to let him go, or find some way of checking the evidence without his cooperation. If they can't do the later, then why bother holding on to him?

As someone who has worked in IT for 25 years, I suspect that the federal government could crack the guy's password if they wanted to; however, they would probably need to involve the NSA, and we're talking about, perhaps, tens of thousands of hours of supercomputer time, and it is simply cheaper for the US government to keep the guy in jail then it is to devote a large segment of NSA resources to cracking the guy's password.  But, then again, if it is a spoof container, then it would take more energy than has existed in the entire Universe, both visible and beyond our cosmic horizon, to crack the passphrase using brute-force methods.

I would lend them my quantum computer but I'd probably never get it back.
It's one of a kind and you can only get them from the future.