Judge Says Giving Up Your Password May Be A 5th Amendment Violation

from the protect-your-data dept

Courts have gone back and forth over the years concerning whether or not being forced to give up your password to reveal encrypted data is a violation of the Fifth Amendment. Now there's been yet another decision saying that someone cannot be forced to give up their password, because it likely violates their Fifth Amendment rights.
This is a close call, but I conclude that Feldman’s act of production, which would necessarily require his using a password of some type to decrypt the storage device, would be tantamount to telling the government something it does not already know with ‘reasonably particularity’—namely, that Feldman has personal access to and control over the encrypted storage devices. Accordingly, in my opinion, Fifth Amendment protection is available to Feldman. Stated another way, ordering Feldman to decrypt the storage devices would be in violation of his Fifth Amendment right against compelled self-incrimination.
It's definitely a good thing to see courts getting this right. Being forced to give up your passwords and encryption is quite a slippery slope. It's good to see judges pushing back.
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Filed Under: fifth amendment


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  1. icon
    Violated (profile), 27 Apr 2013 @ 7:52am

    Re: Re: UK

    I have been checking and the UK has law against self-incrimination under the "right to remain silent" which means you can refuse to answer questions posed by the Police or in Court.

    Be aware though that refusing to answer the Police and instead only revealing your defence in Court can be used against you if the Jury conclude that you used this delay to fabricate a story.

    In this regrade the best thing to tell the Police is that on "legal advise" you refuse to answer any questions. If you wish to be more forthcoming then it is best to have the Police submit questions in written form where these questions and your reply can be parsed through your lawyer. Just keep in mind that answering some questions and not others can be used against you as if you did have something to hide. So in general a blank refusal to answer questions is best and I could name 10 good reasons to validate this concept.

    This has been limited under law in some examples such as if you are arrested under Terrorism laws.

    Keep in mind that the Police can lie including trying to trick you out of your rights.

    The EU's Human Rights Act does not mention self-incrimination directly but separately the EU Court has found "the right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6"

    None of this addresses the fact that a UK law exists that directly says that if you refuse to hand over your passwords to the Police then they can stick you into prison for up to 5 years. Can this really violate the other?

    The Government grew tired of encryption hindering Police investigations where they made this law thinking that the only people who would want to face a default prison term would be dangerous terrorists and pedophiles.

    I will have to dig out that exact law but I am thinking though that this law is a "lie" that simply cannot he upheld when faced with international standards against self-incrimination. They are trying to compel you to talk and that is unlawful.

    This I believe is why as far as I am aware no one has ever gone to prison for this. The Police would much prefer to fool people into submission with their scare law than to have it challenged in Court and struck down.

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