July 18, 2011

Open Season

Having succeeded in reducing the the Fourth Amendment to little more than a rote ceremonial pantomime, the Land of the Free gets to work on the Fifth.

Posted by Dr. Frank at July 18, 2011 04:20 PM | TrackBack

Disagree - the Fifth Amendment doesn't mean what you think it means. (Which is no slur against you, since the common phraseology used to describe the Fifth Amendment is misleading when applied outside of the context of testimony in court.)

Read the text again; it says you cannot be compelled to be a witness against yourself. While it is commonly referred to as a right "against self-incrimination", it only has that meaning in the context of compelled testimony.

The Feds used a very apt analogy here, and I think it works, both logically and in terms of the plain meaning of the Amendment:

Imagine a physical safe, containing documents they have a warrant for. Current precedent says they can compel you to provide the key to the safe; this does not violate the Fifth Amendment because unlocking the safe is not providing testimony against yourself - it's merely providing access to physical evidence specified by the warrant, and which can only be admissible because of the warrant. If the physical evidence tends to incriminate you, well, tough - just as they can compel you to give fingerprints or a DNA sample that might prove you did something, they can compel access to other physical evidence - just not your testimony under oath.

Encryption keys are no different, in principle.

(I have nothing against the idea of a stronger principle against being compelled to help the State in prosecutions; but I don't think the Fifth Amendment - as written - demands it, and thus it would require a new Amendment to make it a Constitutional right. Or just new statutes to make it a statutory right.

But just as I'm a textual originalist on the First and Second Amendments, I have to apply the same standards to the other ones, and the text doesn't say anything about that, and was never intended to. After all, safes and locks existed in 1789, and if that was intended, they'd have worded it to make it clear that the protection was meant to be against all compulsion in aid of prosecution, rather than against the thing they actually wrote.

The Supreme Court got it right on the keys-to-the-safe question, and this is the same question, in a different form.)

Posted by: Sigivald at July 19, 2011 06:12 PM

I hear ya, Sigi, and it's a sound analysis, though I worry about the wiggle room inherent in a standard that turns on defining what is meant by "testimony." It wouldn't be a huge step from this logic to the idea that the state ought to be able, outside of the courtroom setting necessary to count it as testimony, to compel a suspect to reveal other, less "key-like," information when it relates to physical evidence. Where did you hide the key? Where did you hide the drugs? Where did you hide the body? What did you do with the murder weapon? If the 5th doesn't apply to those scenarios, what would it apply to? I'm sure I've got it all wrong, though, and you could set me straight.

The 4th Amendment died the death of a thousand cuts, some of which were perfectly rational and defensible on their own. In the aggregate though, the effect was to weaken it beyond recognition. (Layman's opinion, obviously, but I believe it's the case.)

I expect this to happen to the entire Bill of Rights, eventually.

Posted by: Dr. Frank at July 19, 2011 06:51 PM

"Where did you hide the body?" is a question that depends on the assumption of guilt, though.

Ownership of an encrypted laptop is pretty much a guarantee that you know (or possess) the encryption key.

I see a pretty bright line between "give us access to specific store of evidence we can see is locked up right here, and was under your direct control" and "answer any question we come up with as long as it's not in court", myself.

(That said, if there was a probable-enough-for-a-warrant body locked in a crypt, say, and they had a warrant, they'd be on the same grounds to compel you to open the crypt.

And at the same time they'd have no basis for asking you "where did you hide the body?!!?", because that's a fundamentally different question than "where's the key".

The latter does not admit, establish, or even suggest guilt; it just lets them perform a warranted search on a specific bit of property under your control.

Posted by: Sigivald at July 20, 2011 06:59 PM

Thanks. I understand the distinction, and you're right that they're different kinds of questions. If I believed this approach to digital searches would stop with warranted demands for an encryption key to a specific disk, I'd be a lot less disturbed by it. But I do believe it will spread to warrantless, "fishing", situations, beginning, probably, with border searches, which, insanely, already somehow pre-empt the Fourth Amendment entirely and summarily. Currently, you can technically refuse to surrender your passwords to a border control agent who asks for them on the spot, though it entails a lot of grief and inconvenience and probably won't end well for you or your electronic device. Five years from now? I hope not, but I believe they will by some rationale, based on incremental, reasonable-sounding measures like this one, be able to compel you to surrender your keys so they can randomly have a look around and copy your data for further, more leisurely perusal and archiving.

(Indeed, if the password to an encrypted disk is in fact identical under the law to a physical key, then we're already there. They don't need a warrant if you're at an airport. They can compel you to open your suitcase on a whim, so why not also compel you to open your laptop and let them copy your data? You're required to leave suitcases unlocked when you check them at the airport to facilitate searches. Same with laptops or phones? Am I wrong about this?)

As for the Fifth Amendment, though, I expect there will eventually be more things (other than passwords/keys) that will be deemed compellable, and this is a step towards that. (Accomplices? Bank account numbers? I can think of many potentially incriminating pieces of information that a defendant might want to keep to himself that don't necessarily assume guilt.) I much prefer the simple "right to remain silent" even if a literal reading of the text possibly excludes information extracted outside of a courtroom.

Posted by: Dr. Frank at July 20, 2011 07:40 PM

Just to make sure it's clear, Sigivald: I'm not saying you're wrong. I'm saying you're probably right, and that it's terrible that you are.

Posted by: Dr. Frank at July 21, 2011 12:40 AM