Indefinite prison for suspect who won’t decrypt hard drives, US government says • Hacker News Board

Re: Indefinite prison for suspect who won’t decrypt hard drives, US government says

#221

Post by dragonwriter » Thu, May 19, 2016, 12:07 AM UTC

curun1r wrote: post #165

Spooky23 wrote: post #149

Earlier quoted context omitted.

Why? He's in possession of data deemed contraband, but apparently not linked to distribution. The police need to demonstrate possession and can do so when their search is complete. The police did an investigation, obtained a warrant to search for the contraband and seized the hard drive. The defendant was ordered by the judge to decrypt the drive per the warrant, and refused to follow the order. He's in contempt of c…

Because we have the 5th amendment. nor shall be compelled in any criminal case to be a witness against himself As I understand it, Miranda established that the 5th amendment applies to all interactions with law enforcement, not just answering questions in court. So they can search the hard drive all they want, but the constitution protects us from being required to disclose what's in our heads which, in this case, sh…

> As I understand it, Miranda established that the 5th amendment applies to all interactions with law enforcement, not just answering questions in court. So they can search the hard drive all they want, but the constitution protects us from being required to disclose what's in our heads which, in this case, should include the password.

The privilege against self-incrimination applies to any interaction which they introduce into evidence against you in a criminal case, or from which they derive information on which they then gather other evidence that is used against you in a criminal case.

It doesn't actually protect you against the police doing anything, or forcing you to provide information (other Constitutional provisions may, however), it just protects you against certain information being used against you in criminal court.

Re: Indefinite prison for suspect who won’t decrypt hard drives, US government says

#222

Post by s_q_b » Thu, May 19, 2016, 3:53 AM UTC

welterde wrote: post #135

s_q_b wrote: post #36

Earlier quoted context omitted.

Neither British common law or Continental law systems have any mechanism to challenge this type or behavior. At least in the US, there's an absolute right against self-incrimination, guaranteed by the Fifth Amendment. The higher courts have been pretty clear, going all the way back to combination locks, that coercing a password would constitute requiring a defendant to incriminate him or herself. The actions of the j…

> or Continental law systems Huh? What gives you that idea (at least for Germany [0], Switzerland, France(-ish), etc. it is demonstrable false)? Even the European Court of Human Rights holds that you have the right to remain silent despite there not being a article specifying this as such. [0] And it does indeed extend to passwords here

Germany, France, and Britain use a form of so called "right to remain silent," but the prosecutor is allowed to submit silence as evidence of guilt in and of itself.

That is extremely different than a prohibition against self-incrimination.

In France, you actually have to take the stand at trial. However, if you do so under the coercion of the court, you cannot be prosecuted for perjury for anything you say during your testimony. So essentially you can lie, in matters both small and large.

Re: Indefinite prison for suspect who won’t decrypt hard drives, US government says

#223

Post by rthomas6 » Thu, May 19, 2016, 3:45 PM UTC

astazangasta wrote: post #76

Why doesn't the Fifth Amendment cover this?

For much the same reason that it's not against the fifth amendment to ask a suspect to unlock a safe.

http://lawcomic.net/guide/?p=2897

Re: Indefinite prison for suspect who won’t decrypt hard drives, US government says

#224

Post by welterde » Mon, May 30, 2016, 4:36 PM UTC

s_q_b wrote: post #222

welterde wrote: post #135

Earlier quoted context omitted.

> or Continental law systems Huh? What gives you that idea (at least for Germany [0], Switzerland, France(-ish), etc. it is demonstrable false)? Even the European Court of Human Rights holds that you have the right to remain silent despite there not being a article specifying this as such. [0] And it does indeed extend to passwords here

Germany, France, and Britain use a form of so called "right to remain silent," but the prosecutor is allowed to submit silence as evidence of guilt in and of itself. That is extremely different than a prohibition against self-incrimination. In France, you actually have to take the stand at trial. However, if you do so under the coercion of the court, you cannot be prosecuted for perjury for anything you say during yo…

> but the prosecutor is allowed to submit silence as evidence of guilt in and of itself.

In Germany they are not allowed to do that (the police might tell you that, but they tend to be somewhat misleading).

> That is extremely different than a prohibition against self-incrimination.

And this prohibition is actual a central principle of the German law system (and the right to remain silent follows from this).

And the common advice from lawyers here is exactly the same as it is in the US, do use the right to remain silent. Even if you are innocent.. you have nothing to gain by talking (especially without lawyer present).