Judge orders defendant to decrypt files: Unconstitutional or not?

I remember reading about this story some time back.  It’s quite the legal conundrum and has multiple facets which will set precedent for years to come which makes it important to get right the first time.

(Wired) — If a judge orders you to decrypt the only existing copies of incriminating files, are your constitutional rights against compelled self-incrimination being violated?

That’s the provocative question being raised as a Wisconsin man faces a deadline today either to give up his encryption keys or risk indefinite imprisonment without a trial. The defendant’s attorney, Robin Shellow of Milwaukee, said it’s “one of the most important constitutional issues of the wired era.”

Shellow is making a novel argument that the federal magistrate’s decryption order is akin to forcing her client to build a case for the government

[…]

The latest decryption flap concerns Jeffrey Feldman, who federal authorities believe downloaded child pornography on the file-sharing e-Donkey network. They seized 15 drives and a computer from his suburban Milwaukee apartment with a search warrant. A federal magistrate has ordered Feldman to decrypt the drives by today.

Feldman has refused, citing the Fifth Amendment. A federal judge could find him in contempt as early as today and jail him pending his compliance.

It breaks my heart to have to side with Feldman who is accused of possessing child pornography.  Of course he is innocent until proven guilty, but if the accusations are true, he deserves a special kind of punishment.  I have to agree that requiring an individual to decrypt or provide passwords for computers seems to be unconstitutional.

As the above article notes, the State is requiring the defendant to help discover and collect evidence to be used against himself.  How is this different from the State threatening a suspected murderer reveal the location of the murder weapon (which is the linchpin of the entire case) or else he be jailed until he do so?

The most difficult part of this kind of case is putting aside the nature of the charges.  The more severe the crime the more likely we are to justify to ourselves that bending the rules is OK.  However, this is a case of someone who allegedly committed moral evils and no one’s life is immediately at stake if Feldman doesn’t comply.

Where do you stand on the principle of the government requiring a defendant to decrypt his electronic devices for the prime purpose of using its contents as evidence to prosecute him?  Or should the government be required to decrypt the devices on its own if it wishes to use the contents as evidence?

RELATED NEWS: The US Supreme Court recently decided that police agencies can take DNA samples from arrestees without a warrant.

Comments

  1. Fourth Amendment:
    “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

    If there is a probable cause it is not unconstitutional. He would be avoiding a reasonable search.

    “How is this different from the State threatening a suspected murderer reveal the location of the murder weapon (which is the linchpin of the entire case) or else he be jailed until he do so?”

    I don’t find it a valid analogy.
    Being a suspected murderer doesn’t mean someone is the murderer. In case of innocence it would be a unreasonable request.

    A valid analogy is a search warrant.
    Do you have the right to lock the door and make your house impregnable if there is a search warrant?

  2. John,

    Which part of 5th amendment? Could you be more specific?

    “To be clear I don’t oppose the government being able to search the computer I oppose them requiring him to help them.”

    You haven’t answered my question. Do you have the right to lock the door and make your house impregnable if there is a search warrant? Wouldn’t it be an actual opposition to search into the house?

    • Isu, your question is irrelevant. I am not required to unlock my door for the government with a warrant. They can just come right in.

      By opening his own computer he would be in essence testifying against himself. It proves its his computer and it accesses for the govt evidence which testifies to his guilt or innocence.

      I agree the govt should be permitted access, but thats on them.

  3. John,

    My question is relevant. They cannot just come right in as would be if you handle them the key, they would have to break in whereas you refuse to open the door which is resistance to authority.

    It isn’t testifing, it is handling out a key. It is not asking him if he watched himself commiting the crime.

  4. “Consequences of Refusal

    If you are simply asked by police officers for consent to allow them entry into your premises, you may choose to refuse. However, if the police officers produce a search warrant issued by a Magistrate, or demands that you open the door on the ground that they reasonably believe a person to be arrested is inside your premises, then you must cooperate. Otherwise, you may be guilty of the offence of resisting or obstructing the police officers in the due execution of their duties and they may also break open the door for their entry. ”

    http://www.clic.org.hk/en/topics/policeAndCrime/police_powers/q5.shtml

  5. That’s from Hong Kong.

    You haven’t aswered for the laws of your country.

  6. paynehollow says:

    Interesting. I think I side with Isu. I think the analogy might be: IF someone built a room that was impregnable without a key, can the person reasonably accused of a crime be forced to give over a key? Or, is the metaphorical key to committing a perfect crime to just have any evidence against you in an enclosed room that only you can open?

    ~Dan

    • Dan

      You might havr a point there. But when then if they ask where the evidence is? Do you have to provide that too? “Show us where the evidence is” is what im having a difficult time with.

      They have the computer. The only think preventing them from access is their ability to crack the code, or pick the lock so to speak.

      I strongly lean toward not forcing him to decrypt. But I suppose I could be swayed.

  7. paynehollow says:

    Interesting questions. Glad I’m not the one who has to decide. No, I’d say you don’t have to tell them WHERE the evidence is, but “giving the key” seems reasonable if they have a warrant to search – and that would seem true whether the “key” is a door key or an encryption key.

    Exposing my ignorance here, but: What if he said, “I don’t know what the key is…”? Do the authorities KNOW that he has an encryption key?

    The idea of holding someone indefinitely because they can’t “find” a key (house or computer) with no guilty finding does seem troubling.

    ~Dan

    • At first the defense argument was that if he decrypts the device it proves it’s his. Thats a relevant point too I think. I don’t think he’s ever said he doesn’t know the codes, just that he shouldn’t have to provide it. Perhaps he should have began there.

  8. John,

    I didn’t find any reference to refusal of search warrant. All the sites I have search don’t take into account the case. On the contrary, not interference is adviced.

    Anyway, you haven’t either shown a reference were refusal to search warrant is legal.
    .

    • Isu

      What I said was if you refuse to open the door and comply they may let themselves in. http://www.lawcollective.org/article.php?id=102

      In the case I wrote about there is nothing but the government’s own ignorange preventing them from forcing their way into his devices.

      There is no law that says you must open the door for a search warrant, but the police are coming in regardless. This guy is making the argument that he is simply not opening the door.

  9. John,

    “I don’t think he’s ever said he doesn’t know the codes, just that he shouldn’t have to provide it.”

    If they weren’t his he could have said he couldn’t provide the key instead of saying he shouldn’t according to a twisted interpretation of the 5th amendment.

    Is there a reasonable doubt to think they aren’t his devices?

  10. John,

    Your reference doesn’t consider the case of inviolable door.

    • Maybe because thats a thought experiment, not a reality.

      Instead of arguing through analogy, take the actual situation and argue from there.

  11. John,

    The actual situation is that compeling him to give a key is not compeling him to “be a witness against himself”. It is not giving testimony.

  12. The Fourth Amendment, as provided by Isu, says nothing about helping out the authorities in any way. Once probable cause is established, and/or a warrant is presented, I don’t see that the cops can ask that the suspect must bring them anything. They have the right to search and seize, but not to demand that the suspect do any of it for them. At least there’s nothing in the 4th that suggests that.

  13. John,

    “It essentially is an admission that the device is his and that he knowingly hid its contents.”

    You dogded my question. Is there a reasonable doubt to think they aren’t his devices?

    If you play hardass, in the same way, having the key doesn’t mean the devices are his or that the content is his.

  14. marsharlart,

    The Fourth Amendment says people has the right to secure his devices against unreasonable searches. He has NO RIGHT to secure his devices against its searching if it is a reasonable search. He has NO RIGHT to hold the key.

    • Isu

      Respectfully, you areny as familiar with legal protocols in the US. Even if the govt has a warrant to search your home or belongings, youbare not legally obligated tobprovide a key.

  15. I’m leaning unconstitutional. Decryption would prove

    1. He is the one who encrypted it
    2. Ownership

    Thus, incriminating himself, in violation of the 5th amendment.

  16. John,

    “If you then refuse to let the officers in, they have the right to force the door open.”

    As a regular basis, doors can be forced.
    If he avoid it, he is violating a right.

  17. Atticus,

    Being in his house proves:
    1. He is the one who encrypted it.
    2. Ownership.

    Nothing changes.

  18. John,

    “No it doesnt, isu. It proves it was in his house.”

    In the same way giving the key only proves he has the key.

  19. Use one standard or another but not double standard.

  20. Isu is plain wrong. You cannot resist a legal search, that’s true. But you are under no legal obligation to help authorities with that search, particularly if doing so would be incriminating.

    Also, what if the guy honestly doesn’t remember the encryption key? Are police throwing people in jail indefinitely for forgetting door keys? No. They don’t throw people in jail and wait until they remember where the key is, they break the door down! Why should things be any different with respect to digital property? It shouldn’t. Unless you support double-standards like Isu.

    • The non criminal nature of not providing a key for a locked door to officers who have a warrant is that suspects are not charged with not opening the door they kicked in.

  21. TerranceH

    “But you are under no legal obligation to help authorities with that search, particularly if doing so would be incriminating.”

    It is not about helping the search, he is blocking it and it is the same as “resist a legal search”.
    He is not asked to help in file searching.

  22. You have an absurd way of looking at things. If the door to Room B is locked and the owner doesn’t have the key, is he blocking police from searching that room? No. Because police will break the door down.

    So, I ask again: Why should things be any different with respect to digital property? Because it’s harder?

    Like I said, you support double-standards, not us.

  23. TerranceH

    He hasn’t said he has forgotten the key.

  24. And since providing the encryption key does indicate knowledge of the file’s contents, it absolutely is incriminating, and thus constitutes violation of the 5th Amendment.

  25. And if he did say that, what would you say then?

  26. John,

    “The non criminal nature of not providing a key for a locked door to officers who have a warrant is that suspects are not charged with not opening the door they kicked in.”

    But in this case there is no kicked in door.

  27. TerranceH

    “You have an absurd way of looking at things. If the door to Room B is locked and the owner doesn’t have the key, is he blocking police from searching that room? No. Because police will break the door down.”

    He says “nay” to handle out the key, he doesn’t say “I don’t have the key”.

  28. TerranceH

    “And since providing the encryption key does indicate knowledge of the file’s contents, it absolutely is incriminating, and thus constitutes violation of the 5th Amendment.”

    Providing the encryption key indicate as much knowledge of the file’s contents as being in his property.

  29. TerranceH

    “And if he did say that, what would you say then?”

    I would say he isn’t honest.

  30. “The govt cracking the encryption code is the kicked in door.”

    I repeat: There is no kicked in door.
    Kick-ing (crack-ing) is not kick-ed (crack-ed).

  31. Anyway, apart from the encryption issue, according to you if the devices weren’t encrypted and were found to be full of crap, he would be still innocent since it has not been proved that they were his. Curious.

    • No. Not that he is innocent. He must be found guilty. America is unique in that our criminals carry the presumption of innocence. He may very well br guilty but the government has the responsibility to prove it beyond a reasonable doubt.

  32. I used innocent as a presumption (an idea that is taken to be true, and often used as the basis for other ideas, although it is not known for certain).

    Once again I ask you: Is there a reasonable doubt to think they aren’t his devices?

    • No there isnt based on what we know. However the state must show that. For all we know he could have some excuse that makes sense. The point is by unlocking it he is literally removing all doubt that its his.

  33. John,

    “No there isnt based on what we know. However the state must show that.”

    Being caught in his property is a resonable show.

    “For all we know he could have some excuse that makes sense.”

    I haven’t heard a reasonable excuse, so I presume no one.

    “The point is by unlocking it he is literally removing all doubt that its his.”

    For all we know he could have some excuse for knowing the key that makes sense. As I said, use one standard or another but not double standard.

  34. Providing the encryption key indicate as much knowledge of the file’s contents as being in his property.

    This makes no sense. More than a single person can live, visit, and enter a given piece of property, meaning anyone living in the home, theoretically, could be responsible for that kilo of cocaine in the attic. So it’s not necessarily incriminating to everyone living in the house.

    Regardless, things are much different in this case. We’re talking specific knowledge of a specific piece of property that specifically belongs to the defendant. For him to relinquish the key would be incriminating if it indeed has illegal material on it.

    Furthermore, you have failed to adequately address John’s point. If failure to relinquish a key to Room A is not a crime, then why is it a crime not to relinquish a key to digital property? You have no answer because you know it’s a double-standard.

    In America, defendants are not forced to incriminate themselves and they are not forced to help authorities in their search. Authorities searched his home, found the digital file, and are responsible for opening it, just as they would be responsible for opening a lockbox or a door. The difficulty is utterly irrelevant.

    I have said numerous times and I’ll say it again: You do not understand American law and you should stick to what you know and quit commenting on things you do not understand.

  35. TerranceH

    “This makes no sense. More than a single person can live, visit, and enter a given piece of property, meaning anyone living in the home, theoretically, could be responsible for that kilo of cocaine in the attic. So it’s not necessarily incriminating to everyone living in the house.”

    “To be sure, the storage devices were all found in Feldman’s residence, where he has admittedly lived alone for the past 15 years. In addition, the unencrypted Dell computer, which showed connections to the encrypted storage devices, has a login screen with only one username, “Jeff.” ”
    http://www.webpronews.com/5th-amendment-protects-child-porn-suspect-from-compelled-decryption-2013-04

    Since he lives alone, there is no other inhabitants.
    A visitor leaving a Dell computer being the owner unaware is unreasonable.

    “Regardless, things are much different in this case. We’re talking specific knowledge of a specific piece of property that specifically belongs to the defendant.”

    The point is that we already have that specific knowledge.

    “For him to relinquish the key would be incriminating if it indeed has illegal material on it.”

    It isn’t since we already know they are his devices.

    “Furthermore, you have failed to adequately address John’s point. If failure to relinquish a key to Room A is not a crime, then why is it a crime not to relinquish a key to digital property? You have no answer because you know it’s a double-standard.”

    The police don’t pressing charges doesn’t mean it isn’t a crime, they go for the usual easy way: break it.

    It is a clear obstruction of justice.

    “18 USC § 1509 – Obstruction of court orders
    Whoever, by threats or force, willfully prevents, obstructs, impedes, or interferes with, or willfully attempts to prevent, obstruct, impede, or interfere with, the due exercise of rights or the performance of duties under any order, judgment, or decree of a court of the United States, shall be fined under this title or imprisoned not more than one year, or both.
    No injunctive or other civil relief against the conduct made criminal by this section shall be denied on the ground that such conduct is a crime.”

    “In America, defendants are not forced to incriminate themselves and they are not forced to help authorities in their search.”

    This is not incriminatory and it is not helping their search but remove the obstruction of their search.

    “Authorities searched his home, found the digital file, and are responsible for opening it, just as they would be responsible for opening a lockbox or a door. The difficulty is utterly irrelevant.”

    It is only mentioned that they have the right which is derived from their right to search, not that specific responsability.

    “I have said numerous times and I’ll say it again: You do not understand American law and you should stick to what you know and quit commenting on things you do not understand.”

    Not matching your misrepresentation of American law doesn’t mean not understanding American law.

  36. Isu,

    Since he lives alone, there is no other inhabitants.
    A visitor leaving a Dell computer being the owner unaware is unreasonable.

    Maybe he purchased the computer second-hand and the files were buried in the harddrive. Maybe he allowed a friend to use it one night. Maybe. Maybe. Maybe. There are all sorts of possibilities.

    Regardless, the Constitution is upheld at all times, or at least should be, and a person’s rights are not ignored on an individual basis because it’s likely they’re guilty. That’s not how we operate in America. Pity you don’t understand.

    The point is that we already have that specific knowledge.

    No, we don’t. There are a hundred possibilites you’re not considering.

    It isn’t since we already know they are his devices.

    No, it’s not. We’re not sure of its contents – and can’t be until he relinquishes the key, apparently. Therefore, he would be incriminating himself if there is illegal material on it. Pity you don’t understand.

    The police don’t pressing charges doesn’t mean it isn’t a crime, they go for the usual easy way: break it.

    It’s only obstruction in your twisted view of the world. The police have the device. It is in their possession.

    This is not incriminatory and it is not helping their search but remove the obstruction of their search.

    I don’t care what you think. It absolutely is incriminating. If “Jeff” knows there is child pornography on his device and hands over the key, well he might as well sign a f*cking confession, plead guilty, and start serving his term.

    To any reasonable person, authorities are forcing this man to incriminate himself and therefore violating the Fifth Amendment.

    You know absolutely nothing about American law. You’re an ignorant foreigner who should stick to what you know.

  37. Federal Judge Blocks Order Demanding Suspect Decrypt Computer Drives or Face Jail

    A federal judge today halted an order that a Wisconsin man decrypt 16 computer drives the authorities suspect contain child pornography downloaded from the peer-to-peer file-sharing site e-Donkey.

    The brief ruling (.pdf) by U.S. District Judge Rudolph Randa of Milwaukee came a day after the suspect’s attorney urged Randa to halt a magistrate’s earlier order that Jeffrey Feldman decrypt the drives by today or potentially face indefinite detention until he complied.

    Because of legal complexities, the magistrate judge in the case stepped aside and the case was assigned Monday to Randa, who today ordered the government and Feldman’s counsel to brief “the issue of Feldman’s Fifth Amendment right against self-incrimination.”

    Feldman’s attorney Robin Shellow has characterized the issue as “one of the most important constitutional issues” in the digital era. She said today that she would “move heaven and earth” to ensure that “the infinitesimal amount of child pornography that recirculates on the internet does not eradicate the Fifth Amendment the way the war on drugs has eviscerated the Fourth Amendment.”

    Prosectors did not respond for comment.

    In our earlier story today on the decryption flap, we delve into the legal complexities of the issue and the novel defense that Shellow is making.

  38. One thing is for sure, if the Sconnies followed Isu”s logic the guy would probably not get convicted (there is obviously enough reasonable doubt to drive a truck through), or at least get out when his lawyer appeals.

  39. If the guy has child pornography on his digital property, he’s a pig who belongs in prison for the rest of his natural life. I have no sympathy for people like him. I want them in prison. But I want them to go to prison the right way, without shredding the Constitution.

    Authorities are not sure of the contents on the digital property. They have no idea. It could be child porn, illegal gambling information, or short stories about fuzzy puppies. Nobody but the owner of the device knows. There is nothing currently incriminating about those devices, legally speaking. We’re not sure of the contents.

    But if the guy is forced to relinquish the encryption code, knowing full-well authorities will find illegal material that will send him to prison, then his Fifth Amendment rights are being violated. He is OBVIOUSLY incriminating himself.

    I reject the “obstruction” argument because police have the property in their possession. The only thing obstructing them from reviewing the contents is, quite simply, their own ignorance and unfamiliarity with that particular encryption software. The guy relinquished the property to them, so there is no obstruction in the legal sense of the word.

  40. Terrance,

    You are right, in the same way that the police have the right to kick down a physical door to gain access to a building, they are certainly within their rights to kick down the digital door of the encryption system. The fact that they want the guy to give them the key just means they’re too cheap, lazy, or incompetent to crack the system.

  41. “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.”

    There is no such thing as a right against self-incrimination in the Fifth Amendment

    It says “nor shall be compelled in any criminal case to be a witness against himself”, but handling out a key is not being witness of any crime (owning encrypted devices is not a crime).

  42. John,

    witness: a person giving sworn testimony to a court of law or the police.

    incriminate: make (someone) appear guilty of a crime or wrongdoing; strongly imply the guilt of (someone).

    It is not the same.

    • You dont quit do you. Our legal system recognizes that a person is not obligated to incriminate themself under the 5th amendment. I realize you dont understand America’s way of things, but maybe you can just understand you don’t and stop the nonsensr.

  43. John,

    Handling out a key doesn’t make him appear guilly of a crime or wrongdoing nor strongly imply the guilt.

  44. John,

    I’m pretty aware of what Constitution says, and it says “nor shall be compelled in any criminal case to be a witness against himself””.

    If the “America’s way of thing” is twisting words to protect a possible criminal, you are the ones holding the nonsense.

    • Well they have twisted “congress shall make no law” to mean “never mention”. So it really doesnt matter what you think you know, it isnt how it actually works here. So take Terrance’s advice and dont be so argumentative, you might learn something

    • Its not that it helps the criminal (thought it does) it protects the accused from malicious government prosecution and bullying.

  45. John,

    You are twisting the Fifth Amendment and it is actually how it works there.
    Your irrational denial won’t make it less true.

    “Its not that it helps the criminal (thought it does) it protects the accused from malicious government prosecution and bullying.”

    Sorry, but in my country we use the pressumtion of innocence for the goverment too.
    We are not such paranoid.

    • In this country we have a right to not incriminate ourselves. Im sorry you dont believe or accept it, but its true nonetheless

  46. John,

    “In this country we have a right to not incriminate ourselves. Im sorry you dont believe or accept it, but its true nonetheless”.

    Well, you can set that right if you please.
    But saying that it is in the 5th amendment is false.

  47. Self-incrimination

    The Fifth Amendment protects witnesses from being forced to incriminate themselves. Incriminating oneself (or another person) is defined as exposing oneself to “an accusation or charge of crime,” or as involving oneself (or another person) “in a criminal prosecution or the danger thereof.”[34] The privilege against compelled self-incrimination is defined as “the constitutional right of a person to refuse to answer questions or otherwise give testimony against himself or herself. … “[35] To “plead the Fifth” is to refuse to answer any question because “the implications of the question, in the setting in which it is asked” leads a claimant to possess a “reasonable cause to apprehend danger from a direct answer”, believing that “a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.”[36]

    Historically, the legal protection against self-incrimination was directly related to the question of torture for extracting information and confessions.[37][38]

    The legal shift away from widespread use of torture and forced confession dates to turmoil of the late 16th and early 17th century in England.[39] Anyone refusing to take the oath ex officio mero (confessions or swearing of innocence, usually before hearing any charges) was considered guilty.[39] Suspected Puritans were pressed to take the oath and then reveal names of other Puritans. Coercion and torture were commonly used to compel “cooperation.” Puritans, who were at the time fleeing to the New World, began a practice of refusing to cooperate with interrogations. In the most famous case John Lilburne refused to take the oath in 1637. His case and his call for “freeborn rights” were rallying points for reforms against forced oaths, forced self-incrimination, and other kinds of coercion. Oliver Cromwell’s revolution overturned the practice and incorporated protections, in response to a popular group of English citizens known as the Levellers. The Levellers presented The Humble Petition of Many Thousands to Parliament in 1647 with 13 demands, third of which was the right against self-incrimination in criminal cases. These protections were brought to America by Puritans, and were later incorporated into the United States Constitution through the Bill of Rights.

    Protection against self-incrimination is implicit in the Miranda rights statement, which protects the “right to remain silent.” This amendment is also similar to Section 13 of the Canadian Charter of Rights and Freedoms. In other Commonwealth of Nations countries like Australia and New Zealand, the right to silence of the accused both during questioning and at trial is regarded as an important right inherited from common law, and is protected in the New Zealand Bill of Rights Act and in Australia through various federal and state acts and codes governing the criminal justice system.

    The Supreme Court has held that “a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.”[40]

    A nice summary of the 5th amendment right to protection from self incrimination.

    While it is interesting, yet completely irrelevant, to know how Spain works. We’re talking about the US constitution and legal system.

    Shoot, Spain still has the age of consent at 13.

  48. “The Fifth Amendment’s right against self-incrimination permits an individual to refuse to disclose information that could be used against him or her in a criminal prosecution. The purpose of this right is to inhibit the government from compelling a confession through force, coercion, or deception. The Self-Incrimination Clause applies to any state or federal legal proceeding, whether it is civil, criminal, administrative, or judicial in nature. This privilege is frequently invoked during the trial phase of legal proceedings, where individuals are placed under oath and asked questions on the witness stand.

    The privilege is also asserted with some frequency during the pretrial phase of legal proceedings. In the pretrial phase of criminal cases, it is usually asserted in response to pointed questions asked by law enforcement agents, prosecutors, and other government officials who are seeking to determine the persons responsible for a particular crime. During the pretrial phase of civil cases, parties may assert the right against self-incrimination when potentially damaging questions are posed in depositions and interrogatories.”

    “The U.S. Supreme Court has interpreted the Self-Incrimination Clause more broadly than many of the Framers probably would have. miranda v. arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), illustrates this point. In Miranda the Court held that any statements made by defendants while in police custody before trial will be inadmissible during prosecution unless the police first warn the defendants that they have (1) the right to remain silent, (2) the right to consult an attorney before being questioned by the police, (3) the right to have an attorney present during police questioning, (4) the right to a court-appointed attorney if they cannot afford one, and (5) the right to be informed that any statements they do make can and will be used in their prosecution. Although the Miranda warnings are not provided in the Fifth Amendment’s Self-Incrimination Clause, the Court has ruled that they constitute an essential part of a judicially created buffer zone that is necessary to protect rights that are specifically set forth in the Constitution.

    In Dickerson v. United States 530 U.S. 428, 120 S. Ct. 2326, 147 L. Ed.2d 405 (2000), the U.S. Supreme Court concluded that the Miranda decision was based on Fifth Amendment principles and therefore that it could not be over-turned legislatively. Congressional anger at the Miranda decision had led to the passage in 1968 of a law, 18 U.S.C.A. § 3501, that had restored voluntariness as the test for admitting confessions in federal court. However, the United States department of justice, under attorneys general of both major political parties, has refused to enforce the provision, believing the law to be unconstitutional. The law lay dormant until the Fourth Circuit Court of Appeals ruled in 1999 that Congress had the constitutional authority to pass the law. Chief Justice william rehnquist, a frequent critic of the Miranda decision, joined the majority in rejecting the Fourth Circuit interpretation. Although members of the Court might not agree with the reasoning and the rule of Miranda, Rehnquist acknowledged the essential place that Miranda has in U.S. law and society. He pointed out the importance that the judicial system places on Stare Decisis, a concept that counsels courts to honor judicial precedents to ensure stability and predictability in decision-making. A court should only overrule its case precedents if there is, in Rehnquist’s words, “special justification.” The Court in Dickerson concluded there were no special justifications.

    Despite this decision the controversy over Miranda has not abated. In 2002 the Supreme Court took up the matter again when it reviewed Martinez v. Chavez, 270 F.3d 852 (9th Cir. 2001). The Court must decide whether the Fifth Amendment conveys a constitutional right to be free of coercive interrogation, or merely a right not to have forced confessions used against them at trial.”

    “Pleading the Fifth:
    The best known clause in the Fifth Amendment (“No person … shall be compelled in a criminal case to be a witness against himself”) protects suspects from forced self-incrimination. When a suspect invokes his or her Fifth Amendment right to remain silent, this is referred to in the vernacular as “pleading the Fifth.” It should not by any means be taken as a sign of guilt, but it is generally portrayed as such in courtroom television dramas.”

  49. It says “nor shall be compelled in any criminal case to be a witness against himself”, but handling out a key is not being witness of any crime (owning encrypted devices is not a crime).

    A Federal Judge seems to disagree with you.

    I’m not much for appeal to authority, but in this case I’m inclined to defer judgement to an expert in constitutional law. The judge seems to think there is a Fifth Amendment violation and so is requesting a special hearing. That alone should give you pause, but then again you suffer from that typical European arrogance.

  50. Great posts, Craig.

  51. “The Fifth Amendment protects witnesses from being forced to incriminate themselves.”
    “The Fifth Amendment’s right against self-incrimination permits an individual to refuse to disclose information that could be used against him or her in a criminal prosecution.”

    There is no right against self-incrimination in Fifth Amendment. Quote it to prove otherwise.

    There is a right against being witness against oneself. The Fith Amendment doesn’t “protect witnesses” but protect someone to be a witness against him or her.

    You are twisting the Fifth Amendment. Period.

  52. Isu,

    Perhaps you don’t understand how our system works. We aren’t stuck with a wooden literal word for word reading of the amendment. The judicial system interprets the Constitution and those interpretations then have the same force of law of the constitution. So, when the quotes I gave mention courts case citations, those citations carry the same force of law as the original text.

    Also,in the English language, incriminate and testify against mean essentially the same thing. Especially in the legal vernacular.

    I don’t expect you to grasp the nuance of the US constitutional system, I would hope that you might show a little more humility when people try to explain it to you, instead of arrogantly assuming that you are right.

  53. Craig,

    I don’t mind about your twisted interpretations. If a text doesn’t say anything about something nor it is achieved by deducible reasoning, it is not in the text.

    Every judicial system has interpretations on constitutional text and the may have the same force of law of the constituon if they are from constitutional courts. Still, a twisted interpretation is a twisted interpretation.

    incriminate: make (someone) appear guilty of a crime or wrongdoing; strongly imply the guilt of (someone).
    testify: give evidence as a witness in a law court.

    They are not the same if incrimination isn’t done as a witness in a law court.
    And, as I said, handling out a key doesn’t make you appear guilty nor implies ones guilt.

    I don’t accept your explanation that your interpretation is right because you say so. I don’t accept argument from authority about something when I can watch or explain it by myself.

  54. BTW,

    In Spanish Constitution there is a counter part right.

    “todos tienen derecho[…]a no declarar contra sí mismos[…]”
    Spanish Constitution. Article 24.2

    Which means that all have the rigth to don’t testify against themselves.

    As far as I know, there is no misinterpretation to use it for obstruction of justice.

  55. The basis introduced by the district judge.

    And the point that one of the decives had been already decrypted and it contains files “which constitute child pornography” and files containing “detailed personal financial records and documents belonging to Feldman”.

  56. “I don’t accept your explanation that your interpretation is right because you say so.”

    I don’t expect you to, hence, my use of several sources to support my point. All I’d expect from you is to drop the arrogance and be willing to admit that you might not understand everything about the US legal system.

    ” I don’t accept argument from authority about something when I can watch or explain it by myself.”

    So, are you really suggesting that you are the only authority you need? Are you suggesting that you have a better grasp of the US judicial system and how the 5th amendment works than SCOTUS? You know the body who’s job it is to actually interpret the US constitution? Are you really telling me that you refuse to look at the cases cited in the quotes I posted above because you know better?

    “I don’t accept argument from authority about something when I can watch or explain it by myself.”

    This open up so many fascinating tangents it’s hard not to go completely off topic. I’ve got to save this quote for the future.

    I read the link you provided and found it interesting. First it contradicted your basic claim that the 5th amendment does not prevent self incrimination. It clearly affirms that there is a 5th amendment right against self incrimination. So, on your basic point, you’ve just epically failed.

    As to the substance of the order, it finds that this particular individual case does not qualify for the protection against self incrimination in the 5th amendment. Now, before you get too smug, let me point out that this is one ruling at one level of the appellate system which may or may not be upheld by other courts of appeals. Let’s also remember that the Sconnies are a pretty left of center bunch and that US courts tend to reflect the political bent of the region where they are located. So, IF this decision is upheld, it does not necessarily vitiate the existing 5th amendment protection against self incrimination. It quite clearly upholds the existence of the protection. It would however open a metaphorical door to a situation where the protection doesn’t apply. Obviously, there is a significant difference between allowing an exception to a constitutional protection and denying that the protection exists.

    The problem we seem to be having is that you have confused the potential exception that this particular case may or may not end up affirming, with the existence of the 5th amendment protection against self incrimination. If, again IF, this decision survives the appellate process then it will become precedent and have the same legal force of other precedent.

    The fact remains that the court has given the defense counsel a huge gift of reasonable doubt, as well as ample grounds for appeal.

    Finally, the Spanish constitution really has no bearing on this discussion, so why bring it up.

  57. “And the point that one of the decives had been already decrypted and it contains files “which constitute child pornography” and files containing “detailed personal financial records and documents belonging to Feldman”.”

    Although I have absolutely know idea what a “decives” is. This quote is the exact point that we have been making. The investigators were able to access one of this guy’s hard drives and get evidence that they can use to try to convict him. They did it all by themselves, just like they are supposed to. Thank you again, for undermining your own point.

  58. The document Isu presented is currently null and void. The Judge has ordered a special hearing to examine possible Fifth Amendment violations. Isu’s document was prepated by the Federal Magistrate, NOT THE FEDERAL JUDGE. It’s precisely the document that is responsible for this discussion. It’s not a new ruling.

    Now, I have linked to an article explaining this numerous times and it continues to be overlooked by our arrogant Spaniard.

    A federal judge today halted an order that a Wisconsin man decrypt 16 computer drives the authorities suspect contain child pornography downloaded from the peer-to-peer file-sharing site e-Donkey.

    The brief ruling (.pdf) by U.S. District Judge Rudolph Randa of Milwaukee came a day after the suspect’s attorney urged Randa to halt a magistrate’s earlier order that Jeffrey Feldman decrypt the drives by today or potentially face indefinite detention until he complied.

    Because of legal complexities, the magistrate judge in the case stepped aside and the case was assigned Monday to Randa, who today ordered the government and Feldman’s counsel to brief “the issue of Feldman’s Fifth Amendment right against self-incrimination.”

    Feldman’s attorney Robin Shellow has characterized the issue as “one of the most important constitutional issues” in the digital era. She said today that she would “move heaven and earth” to ensure that “the infinitesimal amount of child pornography that recirculates on the internet does not eradicate the Fifth Amendment the way the war on drugs has eviscerated the Fourth Amendment.”

    Prosectors did not respond for comment.

    HERE

    Isu’s argument is based entirely on semantics and his own ignorance of very simple definitions. To be a “witness against yourself” is the same as incriminating yourself. The definitions of each are not only identical, but this interpretation – i.e., self-incrimination – has been verified and upheld by the United States Supreme Court on more than one occasion, and Craig has sourced this well. By ignoring this immutable fact, Isu is making himself look like a pompous fool who suffers from delusions of grandeur.

  59. Craig,

    I don’t care about your sources if they don’t argue the doctrine. A false doctrine is a false doctrine whatever the source, including my link.

    The definitions are clear and not the same. Self-incrimination is not the same as witness against oneself. I could tell you that I commited a murder, which would be self-incriminating but I wouldn’t be a witness against myself since I’m not under oath.

    TerranceH

    SC holding this interpretation doesn’t mean it is a valid interpretation.
    Is right to privacy under the due process clause of the 14th Amendment extended to a woman’s decision to have an abortion?

    • Actually isu, if youve been read your Miranda rights it is hrld against you. If you blurt it out before the oolice have had a chance to read you your right to remain silent its considered a spontaneous utterance and can be used as well. You seem to know nothing at all about our justice system.

  60. SC holding this interpretation doesn’t mean it is a valid interpretation.

    It absolutely is a valid interpretation and English 101 proves it. The words mean literally the same damn thing. To bear witness against yourself is to incriminate
    yourself; to incriminate yourself is to bear witness against yourself. And legal precedent, which Craig clearly provided, is that this right extends beyond the courtroom. Thus, you are wrong.

    Now, you can argue that it shouldn’t be that way, but the reality is that IT IS THAT WAY. Thus, the guy is NOT compelled to release the encryption codes under American law.

    Now apologize. You were wrong.

    Is right to privacy under the due process clause of the 14th Amendment extended to a woman’s decision to have an abortion?

    No. The child’s right to life must come first. If our lives are not protected, if there is no right to life, then all other rights are transitory. Roe v. Wade was wrongly decided because the court failed to consider the actual life of the unborn child. Had they done that they couldn’t then claim that the woman’s right to privacy prohibits restrictions on abortion. You can’t hack someone to death on your own property and claim a right of privacy when police come knocking.

    • Isu

      Please hive me an example of how a person would be a witness against one’s self without incriminating themself.

      Remember that the constitution doesnt speak of limiting the witness tobsworn court testimony.

  61. It would appear that our arrogant Spaniard, is willing to place his opinion over SCOTUS. This seems to be the very definition of arrogance.

    The source he presented disagrees with his point, so he dismisses it as faulty. The SCOTUS disagrees with him, so he dismisses it as faulty. Terrance demonstrates that the faulty source of Isu’s understanding has been OBE, yet he dismisses that as faulty.
    He doesn’t care about sources because they don’t “argue the doctrine”. The problem is that “the doctrine” isn’t arguable, it is assumed. One doesn’t argue in favor of something which is settled in both law and court precedent.

    Apparently one does arrogantly dismiss that which demonstrates when one is wrong, rather than to provide evidence to prove ones point. It’s certainly easier, it’s just not terribly effective.

    “I could tell you that I commited a murder, which would be self-incriminating but I wouldn’t be a witness against myself since I’m not under oath.”

    Yet, I could then testify that you told me that you committed a murder, which would have the same effect as you testifying against yourself.

    “The definitions are clear and not the same.”

    I’ve already demonstrated the problem with this statement. It also shows a lack of understanding of usage and idiom in the English language. Without an understanding of English beyond a wooden literal definition, it becomes almost impossible to hold a rational intelligent conversation.

  62. John,

    If according to Miranda rights “spontaneous utterance and can be used as well” doesn’t mean you are a “witness against yourself”. Utterance doesn’t equal to testify.

    Fortunately, in my country there is no constitutional misinterpretation in this point and testify is the only thing which counts as testifying.

    “You seem to know nothing at all about our justice system.”

    I’m learning. You use as testification something that is not testification.
    In your country I could be “hanged” because of a joke.

    “Please hive me an example of how a person would be a witness against one’s self without incriminating themself.”

    It is not the case. Feldman is not asked to testify.

    “Remember that the constitution doesnt speak of limiting the witness tobsworn court testimony.”

    The constitution doesn’t speak of altering “witness” meaning to match what you please.

    TerranceH

    As I have shown, the definitions are not the same. Period.
    If you use ad hoc redefinitions that makes your law false.

    You are playing double standard, because you don’t accept SC authority in abortion case.

    Craig,

    “The problem is that “the doctrine” isn’t arguable, it is assumed.”

    Sorry, but I don’t assume fallacious dogmas.

    “One doesn’t argue in favor of something which is settled in both law and court precedent.”

    One does argue against fallacies.

    “Yet, I could then testify that you told me that you committed a murder, which would have the same effect as you testifying against yourself.”

    Having the same effect because you choose so doesn’t mean they are the same.

    “Without an understanding of English beyond a wooden literal definition, it becomes almost impossible to hold a rational intelligent conversation.”

    The use of legal texts out of its literal definition, is the way to pervert law.

    • Isu

      It doesnt say in the amendment “testify” it says witness against one’s self. I know from my days in law enforcement that you dont need to mirandize a suspect unless you are going to ask questions. If in the process of apprehending and arresting a suspect he blurts out “I killed her!!” That can be used against him. If he just offers it without asking anything you are supoosed to interrupt him and mirandize him but anything he said can be used.

    • Why are you adding sworn testimony to the amendment? Werent you chastizing others for adding their own nuances that werent in the text. It says witness against ones self. One can witness against themself to authorities not in a court setting.

  63. Isu,

    You’ve shown no such thing. The definitions are virtually the same linguistically and legally. In fact, Craig has proven beyond all doubt that the Fifth Amendment, per the interpretation of the U.S. Supreme Court, protects one against self-incrimination, even outside the courtroom. You can ignore this all you want, but that won’t change the facts.

    Also, there is a big difference between my view on Roe v. Wade and your view on this case. For one, I’m not disputing what the law says; abortion is very legal. You, however, are disputing the existence of the law, incorrectly claiming that the Fifth Amendment doesn’t protect one from self-incrimination. That’s the difference.

    You can do as I have done and make an argument against current law. That’s fine. Please, let us hear it. Explain why the Fifth Amendment SHOULDN’T protect one from self-incrimination, as I have explained why the 14th Amendment SHOULDN’T allow abortion. But do not dispute that the current interpretation of the Fifth Amendment protects one against self-incrimination, even outside the courtroom.

    Now I advise you to make some semblance of an argument and stop fencing with reality.

  64. John,

    “It doesnt say in the amendment “testify” it says witness against one’s self.”

    witness: a person giving sworn testimony to a court of law or the police
    testify: give evidence as a witness in a law court

    It doesn’t directy say “testify” but it is deduced from “witness” unlike “self-incriminate”.

    “That can be used against him.”

    You can use it in your legal system, but it doesn’t mean is testify or witness.
    As I said, fortunately in my country I wouldn’t be sentenced because of a joke.

    “Why are you adding sworn testimony to the amendment?”

    I’m not adding, It is deduced from “witness”.

    “Werent you chastizing others for adding their own nuances that werent in the text.”

    I was chastize others for false interpretations. The right to don’t testify against oneself is implicit as deduced from “witness”.

  65. TerranceH

    incriminate: make (someone) appear guilty of a crime or wrongdoing; strongly imply the guilt of (someone).
    witness: a person giving sworn testimony to a court of law or the police

    The definitions are patently different. You can incriminate yourself without making sworn affirmations.

    “per the interpretation of the U.S. Supreme Court”

    Falacious non-sequitur dogmas doesn’t serve as a rational basis for demostration.
    Asking me to accept a dogma as basis to proof that dogma is a petitio principii fallacy.

    “Explain why the Fifth Amendment SHOULDN’T protect one from self-incrimination”

    Because it isn’t in the Fifth Amendment nor deduced from it.

    “But do not dispute that the current interpretation of the Fifth Amendment protects one against self-incrimination, even outside the courtroom.”

    I don’t dispute that your twisted interpretation does that. I say Fifth Amendment doesn’t.

    • You dont have to swear to provide a witness statement to the police.

      But this is getting absurd now. Isu, its heen explained to you that the 5th amendment in this country has been taken to include the right to not incriminate yourself. It doesnt matter if you agree and it doesnt matter if you want to argue because we the commenters here, did not make the rule. So give it a rest. Whether you agree with the supreme court or not is irrelevant. Youre wrong, and it seems happily so.

  66. Isu,

    There are many definitions of “witness,” but for some reason, either lack of intelligence or sheer dishonesty, you’re only providing the one that amplifies your pathetic argument.

    It can also mean “evidence or proof.”

    evidence; proof: the memorial service was witness to the wide circle of his interest.

    used to refer to confirmation or evidence given by signature, under oath, or otherwise:

    The usage of the term in the Fifth Amendment clearly means that one is not compelled to give “evidence or proof” to authorities of a crime they committed. The Supreme Court of the United States has upheld this interpretation, as well as nearly every other legal scholar under the sun.

    You are plain wrong. You have been proven plain wrong numerous times, but you refuse to give in because you are the quintessential arrogant European.

    Because it isn’t in the Fifth Amendment nor deduced from it.

    This is meaningless noise. Since it’s our law per the interpretation of the U.S. Supreme Court, clearly it’s “deduced from it.”

    Asking me to accept a dogma as basis to proof that dogma is a petitio principii fallacy.

    I’m not demanding you accept the Supreme Court’s interpretation as accurate, though it is most assuredly accurate. No. I’m arguing that, under current law, the man in John’s story is not compelled to give up the encryption keys. You claim he is, thus you claim wrong, and current interpretation of the Fifth Amendment, which Craig provided, proves it.

    I don’t dispute that your twisted interpretation does that. I say Fifth Amendment doesn’t

    My interpretation, the Supreme Court’s interpretation, and every legal scholar under the sun worth his salt. I can live with that.

  67. John,

    “You dont have to swear to provide a witness statement to the police.”

    That’s your twisted reality. You took as witness something that is not.

    “But this is getting absurd now. Isu, its heen explained to you that the 5th amendment in this country has been taken to include the right to not incriminate yourself.”

    It’s inclusion is a non-sequitur fallacy.

    “It doesnt matter if you agree and it doesnt matter if you want to argue because we the commenters here, did not make the rule.”

    It matters to truthfulness.

    “So give it a rest.”

    I don’t accept wrong intrepretations as truth.

    “Whether you agree with the supreme court or not is irrelevant.”

    As I said it is relevant to truthfulness.

    “Youre wrong, and it seems happily so.”

    You are the ones wrong since 5th Amendment doesn’t include the right to not incriminate yourself. Period.

    Being legal doesn’t make it true.

  68. I reiterate:

    The usage of the term in the Fifth Amendment clearly means that one is not compelled to give “evidence or proof” to authorities of a crime they committed. The Supreme Court of the United States has upheld this interpretation, as well as nearly every other legal scholar under the sun.

    You are plain wrong. You have been proven plain wrong numerous times, but you refuse to give in because you are the quintessential arrogant European.

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