In what could potentially be a landmark Vermont case, judge says thanks to the Fifth Amendment, a child pornography defendant doesn't need to turn over his laptop's PGP passphrase.
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Kiddie pornographers belong in jail but the hysteria over all of this is resulting in a lot of people ending up in jail who should not be.
I wonder if this whole thing is a setup to try to set some judicial precedents?
Someone said that you should tell the officer no when they ask for the password and I agree. If you are stopped for a traffic violation and the police want to search your car, tell them no. They do not have the right to search the car and they do not have a need to search the car. Does this mean that some people will get away with transporting drugs or other illegal items? Yes. An English jurist, William Blackstone, spoke of this when he said, "Better that ten guilty persons escape than that one innocent suffer." Benjamin Franklin referenced the quote during some of his early dealings with the foundation of America.
Giving up your rights does not protect America, it imperils it.
On the hard disk of one of these PCs are files and folders where I had toyed with various encryption programs years ago just to see the advantages and disadvantages of each. Since nothing important was ever contained on any of these discs, the passwords for the encrypted files and containers have long since been forgotten.
So, just out of left field, I was pondering the question: what IF a precedent were at some point set where, by law, you could be forced to provide passwords to locked or encrypted files. And what would happen, for example, if the PCs sitting in my garage, for whatever misguided reason, were to be confiscated, examined, and the required passwords demanded? Of course I would be unable to produce them. What then?
Point being, if such a precedent were ever to be set (handing over passwords by order of law), there would certainly be cases where the defendant would be unable to do so. Maybe they never had the password. Maybe they simply forgot it. Maybe when they setup the encryption they accidentally entered one password when meaning to enter another and have never had access to the files in the first place. Who know whatever maybes there could be.
What would happen in these cases? Could it come that you would be sentenced to jail time for forgetting a password??
If you live in the UK, the answer is yes. You could be gaoled for up to two years if you fail to provide, when asked for, the passphrase to your encrypted drive or files. Forgetting your passphrase is not an accepted reason for failing to provide.
I, like presumably most people, have files to which I no longer recall the password. Even simple excel or word documents which I no longer use. It's not beyond the realm of possibility that a government such as the one in the UK could abuse the power it now has to demand passwords/passphrases and gaol a political activist to silence them. The RIPA legislation doesn't specify that the file must be protected by a password the LEA can't crack, just that all passwords must be provided on request. Therefore even an old password protected Word document could be used by the government as a trigger to gaol someone if they really wanted to.
Don't get fooled by the kiddie porn red herring. This case ultimately is about protecting our freedoms. If it means some guy who gets off perving on dirty pics manages to walk this time, it's still worth it.
"Giving a defendant limited immunity in terms of forcing them to turn over the passphrase can lead to a conviction. That's because the fellow technically isn't being convicted based on his passphrase; he's being convicted for what it unlocks. Isn't the law grand?"
But there is a bit of a problem with that. I'm no lawyer, but I have to wonder a few things...
For one, can a prosecutor legally compel me to say anything at all? Even if they offer "limited immunity" I still have the right to refuse. After all, do I not have the right to remain silent? And besides all that, if, "the fellow technically isn't being convicted based on his passphrase" then, "technically" they have no need to know.
I would have to say the best way to resolve this issue is to think of this scenario:
Suppose I have a chest. Inside the chest there may or may not be contraband. In order to convict me, they need to verify what is inside the chest. Now suppose it is a virtually indestructible chest, and only I know where the key is. No court can compel me to reveal the contents of my mind. I could reasonably say, "My private journal and financial records are in that chest and I will show it to no one." as an explanation for my reluctance, in which case "immunity" for the location and knowledge of the key is not an issue to me, since giving the key would allow them to see my private information. And if I don't think I have contraband to begin with, I would be much less concerned with "limited immunity" and much more concerned with preserving my privacy.
Of course, I would have to wonder how long a case like that could drag on. Eventually they would have to return to me the chest, or laptop, or whatever has been confiscated as "evidence" but they could also use the reasoning "we have reason to believe it contains contraband so we plan to search for the key" and in the case of a computer, just hook it up to another computer, and let a hacking program run until the statute of limitations expires in which case, if that have not produced the key, they would have to return the now long expired laptop. Though even then one could reasonably argue that if they have no proof I have any contraband at all, they would have to return it very shortly, because the 4th Amendment protects my right to property.
It would be a shock! An embarrassment! An inevitability!
After all, not everyone with passwords are guarding contraband. Most people just want to keep their privacy.
It would be just too funny when that inevitably happens. Because someone will press charges against the officers for invasion of privacy and false arrest.
It would be even more funny if it just happened to be a business laptop which had client credit card information. Because current federal laws require the business to inform all clients when their information has been compromised, they would have to write a letter to each and every client which might go something like this...
"I regret to inform you that despite our best efforts, your credit card information has been read by ______ as a result of a court order issued by ______."
Then see how long it takes for officers and judges to start loosing their jobs.
It is inevitable. It is eventual. So what's it going to be? Are we going to wait until you must trust that the officer who read your credit card number isn't crooked? Or are we, the people, going to take a stand?
If you're sick and tired of the politics of cynicism and polls and principles, come and join this campaign.
Now, on the other hand, if he is a pedophile, I hope they find the dirty details and I hope he rots. But if it's just cartoons, leave him alone and let him get on with his life. The border patrol needs to be more worried about trafficked hookers and bundles of drugs coming through than some guys particular pornography tastes.
- by SapereAud33 February 7, 2009 6:44 PM PST
- The problem is that the 5th and the right to remain silent only apply in criminal cases, all the government has to do is get someone to sue him for damages for something and claim that evidence is on that drive and he can be force to give up the password.
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