How would you rule on this Fifth Amendment case?

  • Posted by a hidden member.
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    Jan 16, 2008 7:15 PM GMT
    In Child Porn Case, a Digital Dilemma
    U.S. Seeks to Force Suspect to Reveal Password to Computer Files

    http://www.washingtonpost.com/wp-dyn/content/article/2008/01/15/AR2008011503663.html?hpid=topnews

    >"The federal government is asking a U.S. District Court in Vermont to order a man to type a password that would unlock files on his computer, despite his claim that doing so would constitute self-incrimination. "

    >"On Nov. 29, Magistrate Judge Jerome J. Niedermeier ruled that compelling Sebastien Boucher, a 30-year-old drywall installer who lives in Vermont, to enter his password into his laptop would violate his Fifth Amendment right against self-incrimination. "If Boucher does know the password, he would be faced with the forbidden trilemma: incriminate himself, lie under oath, or find himself in contempt of court," the judge said. "

    -------------------------------
    Why there is a Fifth Amendment: http://www.slate.com/?id=2061972

    Amendment V

    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.


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    Jan 16, 2008 7:36 PM GMT
    Tough call.

    They don't need his password to view the drive. They can just pop it out of the machine, put it in another machine as a nonboot drive and read it.

    Oh, nevermind. This is encryption, not a simple logon password.
  • ShawnTX

    Posts: 2484

    Jan 16, 2008 7:43 PM GMT
    I would make a ruling compelling him to give up his password; the saftey and exploitation of children are much more important than the right against self-incrimination. But that line of reasoning can open up a whole ugly can of worms.
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    Jan 16, 2008 7:43 PM GMT
    The Federal Government can decrypt just about anything they care to - if they put some resources on it.

    Most commercially available encryption stuff is child's play to the feds - or they already have a back door key for it.

    I can only assume that the attorney involved doesn't have enough power to get to the resources that can do it.

    And that doesn't even take into account talented hackers who seem to be able to undo just about anything:

    http://stronghold.redhat.com/c2net/pr/19970618

    J.
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    Jan 16, 2008 7:50 PM GMT
    The rights of children are all well and good, but they are often used as a front for terrible mischief. I think some of the innocent McMartin family are still in jail.

    Anyway, the Bill of Rights is not something to be thrown away over gray issues. He cannot be compelled to comply without doing permanent injury to the Fifth Amendment. Let's not let sentiment get in the way.
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    Jan 16, 2008 7:50 PM GMT
    Why there is a Fifth Amendment: http://www.slate.com/?id=2061972
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    Jan 16, 2008 7:51 PM GMT
    It really is a tough call. One might argue that if he has nothing to hide then he should just ante up! If he did that he would feel totally violated by an over-zealous agent in the justice department.

    If the Supreme court over-turns the lower court decision the fear is what’s next is anything off limits!

    In this era of post 911 it has created a mountain of issues having to deal with our “civil liberties” and how much are we will to sacrifice in the name of our safety.

    I agree with you McGay it is a very tough call!

    I guess it would not be such a gray issue if the suspect had been formally charged with a crime.

    He only a suspect and his attorney is advising him not to incriminate himself.
    Like it or not that is a part of the language when one is read his Miranda rights and he is just merely exercising that right.

    WOW!
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    Jan 16, 2008 7:51 PM GMT
    sure, why not force a man against his fifth amendment right? in fact, why not just change the constitution all together... ugh.
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    Jan 16, 2008 7:52 PM GMT
    As bad as child porn is I think the court made the right choice. The facts of the case may be worse than others but that doesn't mean we violate someone's constitutional rights just to find justice.

    I'm sure that the FBI or whoever else can find what's on the computer anyhow. Slowly eroding civil liberties in the name of justice isn't worth it.
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    Jan 16, 2008 7:58 PM GMT
    Jeebus...Trance and I agree on something!

    Check the temperature in Hell........
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    Jan 16, 2008 8:04 PM GMT
    I had to double read your post to be sure icon_wink.gif
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    Jan 16, 2008 8:31 PM GMT
    This is an interesting legal issue but I would say it is protected by the 5th

    but I agree with PSjoey..the govt has the tools to open these files I just think the CIA may not want to expose their methods to a court proceeding
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    Jan 16, 2008 9:00 PM GMT
    Trance23 saidAs bad as child porn is I think the court made the right choice. The facts of the case may be worse than others but that doesn't mean we violate someone's constitutional rights just to find justice.

    I'm sure that the FBI or whoever else can find what's on the computer anyhow. Slowly eroding civil liberties in the name of justice isn't worth it.


    (in agreement)

    What is justice if constitutional rights are abridged to serve justice? That sounds like a very Bushy thing.

    Our Civil Liberties (capatilized for a reason) should never, ever, be taken away. They are part and parcel of the foundation of this country.

    I do digital forensics and I often have a harddrive in my possession that is imaged from a suspect system and I travel over state lines to return to our labs for investigation or storage. I'm not an officer of the law nor a licensed private investigator. I cannot withhold an object from discovery should I encouter a border inspection.

    If they find something sufficiently bad on the drive I'll likely be jailed. I will eventually be set free, but until then I will have a very frustrating time proving innocence and it'll be costly - to me.

    Am I a) required to disclose confidential client information and/or b) confidential personal information just to suit the whims of a police agency? Am I guilty of a child porn law if I have such a drive in my possession?

    Regardless of what does or does not exist on the harddrive, I firmly object to compelling a person to reveal their passwords.

    I have absolutely no hesitation in punishing a party that is undeniably guilty of actually exploiting or endangering children. I do however have a problem with the presumption of guilt and thought crimes. More and more we're stretching the gray area between "guilty beyond shadow of a doubt" and "we think he thought about it".
  • jarhead5536

    Posts: 1348

    Jan 16, 2008 9:05 PM GMT
    Have to side with the defendant/suspect here. His facilitation of access to his hard drive is self-incriminating. A search warrant should be sufficient to gain access to the encrypted files...
  • NickoftheNort...

    Posts: 1416

    Jan 16, 2008 9:05 PM GMT
    I would rule in favor of the defendant, as revealing his password has the potential to incriminate himself, triggering his Fifth Amendment rights within the U.S. federal constitution.

    I would also point out that, presuming that they have obtained a proper search warrant, law enforcement officers would be permitted to remove and decrypt the harddrive in search of specific evidence. However, I imagine that this can trigger other legal ambiguities in terms of how the government searches the harddrive (I am concerned with how rulings on search-and-seizure and plain sight might play into it).

    Though, yes, it makes law enforcement tougher to fulfill.

    I am struck the possible sentencing he could receive. 20 years in prison is, IMO, overkill for possessing such material (with regards to the idea of punishment fitting the crime and the cost to our society of incarcerating one of our members for such a lengthy period of time).
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    Jan 16, 2008 9:31 PM GMT
    If he is a suspect, then search warrant. Then just gain access with a white hat hacker or agent. I dont understand why they are even asking him if he has probable cause to search hard drive. Whatever happened to the good old days when you could just torture it out of someone. ;)
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    Jan 16, 2008 9:31 PM GMT
    The defendants right to plead the 5th should stand, we sure don't want any court ruling against his right against self incrimination because it would have a terrible trickle down affect and very far reaching. Don't want to go down that road !!! What he should do is destroy the thing, by taking the example of the CIA !!! LOL !!!!! (but on a serious note I don't want to see any child molester go free, and possible do much more and maybe worse, even so the constitution should stand even if it hurts the case against him)
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    Jan 16, 2008 9:41 PM GMT
    realifedad said...(but on a serious note I don't want to see any child molester go free, and possible do much more and maybe worse, even so the constitution should stand even if it hurts the case against him)


    Do keep in mind that at present there is no evidence that he has molested a child. This is akin to saying you're guilty of gang crimes and drug abuse for having parked in a bad part of town.
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    Jan 16, 2008 9:46 PM GMT
    no argument he should be forced to do it

    I think the whole 5th amendment shows more about naivity of new beginnings than anything else and needs a total overhaul, but heck Im a foreigner and Im sure I will get slated for having an opinion on this
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    Jan 16, 2008 10:44 PM GMT
    ^ icon_wink.gif

    No worries. From what I can gather most people I meet from Europe think less of the concept of liberties as opposed to ensuring a safer society.

    Not meant as an insult at all. It's just the few people I've talked to all seem to agree that protecting the innocent and keeping a safer realm to live in is the most important role of the police and justice system. Europeans seem to be willing to sacrifice a little more for a better world so to speak.
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    Jan 16, 2008 10:47 PM GMT
    Trance23 saidEuropeans seem to be willing to sacrifice a little more for a better world so to speak.


    True--also the English forget that the whole point of our guarantees of liberty were instituted precisely because England didn't (and doesn't) HAVE them.
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    Jan 16, 2008 10:48 PM GMT
    That's twice in one day!

    This just in: Hell records temperatures of -100 degrees F.
  • NickoftheNort...

    Posts: 1416

    Jan 16, 2008 10:49 PM GMT
    re: bfg1
    The British legal system is radically different from the US legal system (including the former's "lack" of a constitution). The Bill of Rights (or the individual rights) can be called "naive," yet the represent part of what the ideal the US was / is supposed to be: a "new world" where the individual is heavily protected against the government by the government's own rules and where the individual's rights are rarely, if ever, to be abridged on behalf of the larger society.

    It is important to keep in mind that the US legal system is largely a reaction against the British legal system of that time (while also drawing upon English political philosophy).
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    Jan 16, 2008 10:55 PM GMT
    Trance23 said^ icon_wink.gif

    No worries. From what I can gather most people I meet from Europe think less of the concept of liberties as opposed to ensuring a safer society.

    Not meant as an insult at all. It's just the few people I've talked to all seem to agree that protecting the innocent and keeping a safer realm to live in is the most important role of the police and justice system. Europeans seem to be willing to sacrifice a little more for a better world so to speak.


    I think that liberties that allow people to hide behind them, or liberties that allow people the right to spout hatred and threats at a greater society are abuses of that liberty.

    I think the main difference is that all though we had similar fundamental tennets our system of legality has allowed for variations and improvements to be made without undue threat to innocent people.

    I think part of the Euopean stance is more down to the history of our lands. if you take terrorism as an example it has been far higher profile and more active in Europe since the 70's and our liberties have had to be changed for the protection of the masses.
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    Jan 16, 2008 10:58 PM GMT
    jprichva said[quote][cite]Trance23 said[/cite]Europeans seem to be willing to sacrifice a little more for a better world so to speak.


    True--also the English forget that the whole point of our guarantees of liberty were instituted precisely because England didn't (and doesn't) HAVE them.[/quote]


    this comment has been bought up in conversation numerous times by people, I feel there is a very bizarre and blinkered view point of England and Europe. You make it sound like we live in a Big Brother state with no individual freedoms! While we are at it England is not bloody quaint!!!! icon_lol.gificon_lol.gif