A Hard Case makes Good Law, for once.

February 23, 2012 | Filed under Constitutional Issues | Posted by

There has been a Fifth Amendment issue driven by new technology which has been kicking around for a while now.  The Fifth Amendment reads:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. [emphasis added]

There are publicly available (and free) software encryption tools available to the moderately proficient computer user which would require the full on attention of the NSA to break without the key. Since the NSA won’t do that unless there is a clear issue of National Security at stake, this poses a problem for prosecutors at the local, state, and Federal levels.

The “solution” which the prosecutors have been applying to remedy this problem has been to seek court orders requiring the defendant to surrender the encryption key.

The first such case (US v Doe) to be decided by a Federal Circuit Court (the 11th out of Atlanta) concerned a defendant accused of child pornography.  The prosecutor obtained a subpoena forcing the defendant to provide the key to encrypted devices which the prosecution had been unable to decrypt.  A hard case indeed, as child pornographers get almost as little sympathy as they deserve.

Yet the issue itself seems to run afoul of the Fifth Amendment’s protection against self incrimination: “…[No person] shall be compelled in any criminal case to be a witness against himself…”  A key known only to a defendant is in no way a document or record.  The fact that the key unlocks evidence which may be compelled complicates the matter, but the key itself (if not written down or otherwise preserved outside the mind of the defendant) would seem to be protected.

While the charge is heinous, even heinous offenders enjoy the same legal protections as those we identify or sympathize with.

I view this decision as a clear victory for civil rights from about the worst sewer it could possibly have crawled from.

 

Hat Tip: The Wall Street Journal via Google +

 

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Posted by on February 23, 2012.
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  • http://pulse.yahoo.com/_W6UJJOM4PP4XLSBG6N4LROVSQE Retired Military

    The 5th Admendment.  Bah.  Isnt that an admendement to the Constitution. You know the restricting document written by old white guys 200 years ago who had no clue about modern society?

    Who needs it.

  • http://profiles.yahoo.com/u/NLDVHVBNBKSUODWOIAFHQBAHII Stan

    Tell that to the IRS. They seem to be able to skirt that law every time someone files a Form 1040

    • http://profiles.yahoo.com/u/EU5DQWQTTHTPO4A4ZYSL3AAV2U Adjoran

       Read your 1040 – or whatever form you file.  Right above your final signature, it says “under pain of perjury . . . ” which courts have consistently held constitutes a waiver of Fifth Amendment protections.

      Of course, it is also a crime not to file, and IRS and the courts consider an unsigned return to be unfiled.

      Catch-22.

  • http://www.wizbangblog.com Maggie Whitton

    A democracy trying to have its cake and eat it too.   This was a good
    decision by the court.

  • Commander_Chico

    Agreed.   Since the government won’t say what communications they monitor and how, and routinely search laptops and mobile devices with loads of personal and confidential business information at Customs, having encryption is a valuable tool.

    • http://wizbangblog.com/author/rodney-graves/ Rodney G. Graves

      Orthogonal argument.

  • herddog505

    Devil’s advocate:

    Spin the clock back a few decades.  Law officers obtain a warrant to search a suspect’s personal safe.  Has the he got to give them the key or combination to the lock?  On a more mundane level, if a police officer has some cause to think that a suspect has something illegal in the trunk of his car and asks the suspect to unlock it so that it can be searched, is that asking the suspect to incriminate himself?

    • Commander_Chico

      If we spin back the clock a few decades, we find that law enforcement were concerned with real crimes, not datamining and assembling Total Information Awareness.

      • http://wizbangblog.com/author/rodney-graves/ Rodney G. Graves

        Not what this case (or the others) were about.

    • http://www.wizbangblog.com David Robertson

      The issue in the aforementioned federal case pertains to the contents of the defendant’s mind. The defendant had been ordered to testify about the encryption code.  A physical object such as a safe or a car trunk can somehow be opened with or without a defendant’s cooperation.

      • http://wizbangblog.com/author/rodney-graves/ Rodney G. Graves

        David,

        Exactly.

        The encryption can be broken, but not in a timely nor cost effective manner. Rather than spend the time, effort, and money, the prosecutor demands that the defendant provide knowledge known only to himself.

        Safes can be cracked in less time and with less expense. Car trunks can be unlocked or otherwise forced open.

  • ackwired

    It’s good to see that there was not enough fear and hysteria here to cause the overturning of the liberty.

  • John H

    The history behind the 5th amendment was to stop the government from using torture to get a confession. If you couldn’t be made to testify against yourself, then they couldn’t (or wouldn’t) beat a false confession out of you.
    But things that you can’t be made to lie about (e.g. blood alcohol content) can be used against you. This would seem to sit on a line between these two.

    On the other hand, it also seems somewhat silly to spend resources on this. Think about it. Let’s say that the judge decides your password isn’t protected. You say, OK. type in a random sequence. Find it doesn’t work. Do it two or three more times and then say you can’t remember the password. How can you be proven wrong. People forget passwords all the time. Especially when they haven’t been using it.

    The court could charge you with contempt, but would that be fair if you legitimately had forgotten? Given the charges filed and presumably the evidence on the drive, wouldn’t county jail on contempt charges be a preferable alternative if you did remember?

    In a well developed case, you never ask a question in court to which you don’t know the answer, unless you are desperate. The same sort of reasoning applies here. Why push hard for something when you are likely to get nothing if you catch it.

  • Plinytherecent

    A person can be required to provide a fingerprint, a breath sample, and, in some jurisdictions, a DNA sample.  Why is this different?

  • TomInCali

    There is a subtlety here that you missed in your analysis. In reaching this conclusion, the court stated:

    To be fair, the Government has shown that the combined storage space of
    the drives could contain files that number well into the millions. And the
    Government has also shown that the drives are encrypted. The Government has
    not shown, however, that the drives actually contain any files, nor has it shown
    which of the estimated twenty million files the drives are capable of holding may
    prove useful. The Government has emphasized at every stage of the proceedings
    in this case that the forensic analysis showed random characters. But random
    characters are not files; because the TrueCrypt program displays random
    characters if there are files and if there is empty space, we simply do not know
    what, if anything, was hidden based on the facts before us. It is not enough for the
    Government to argue that the encrypted drives are capable of storing vast amounts
    of data, some of which may be incriminating. In short, the Government physically
    possesses the media devices, but it does not know what, if anything, is held on the
    encrypted drives. Along the same lines, we are not persuaded by the suggestion
    that simply because the devices were encrypted necessarily means that Doe was
    trying to hide something. Just as a vault is capable of storing mountains of
    incriminating documents, that alone does not mean that it contains incriminating
    documents, or anything at all.

    In other words, if the prosecutor had shown evidence that the drive actually contained something illegal, as opposed to a fishing expedition, the ruling likely would have been different.