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Comment by ck2 | Hacker News Reader

In the USA can you be compelled to testify against yourself by being coerced into giving a password to law enforcement?

Has this been tested yet, out of curiosity?

I remember reading they can deny you entry/exit to the USA if customs can't read your laptop but never heard anything like local/FBI.

If not, I hope it doesn't go before this particular supreme court.

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They can slap an "obstruction of justice" charge on. Or charge you with "contempt of court" and just jail you based on that.

In broader terms yes the system has a way to inflict random punishment on you for disobidience.

In other countries they will just start breaking your fingers, your loved ones fingers, and so on. So the password problem is solved a lot "easier" then.

Once they start breaking your fingers, it gets a whole lot harder to enter that 50-character password.

Relevant: http://imgur.com/0YHea

They can do that. They face their own consequences if they do.

> They can slap an "obstruction of justice" charge on.

Obstruction of justice can only be committed by officers of the court or elected officials.

> Or charge you with "contempt of court" and just jail you based on that.

This seems very unlikely given the (1) the 5th amendment and (2) only judges can issue contempt of court citations.

> Obstruction of justice can only be committed by officers of the court or elected officials.

Not true. The same legal term seems to be overloaded and used by state laws. For example from the Commonwealth of Virginia Laws (http://leg1.state.va.us/000/cod/18.2-460.HTM):

> § 18.2-460. Obstructing justice; penalty.

A. If any person without just cause knowingly obstructs a judge, magistrate, justice, juror, attorney for the Commonwealth, witness, any law-enforcement officer, or animal control officer employed pursuant to § 3.2-6555 in the performance of his duties as such or fails or refuses without just cause to cease such obstruction when requested to do so by such judge, magistrate, justice, juror, attorney for the Commonwealth, witness, law-enforcement officer, or animal control officer employed pursuant to § 3.2-6555, he shall be guilty of a Class 1 misdemeanor.

Notice it says "any person" not just elected official.

> This seems very unlikely given the (1) the 5th amendment and (2) only judges can issue contempt of court citations.

Actually it is very likely because of (2).

Apparently, not. This guy accidentally tested it the hard way:

http://www.reddit.com/comments/afib1/truecrypt_and_the_fifth...

This entire story smells fake. If TrueCrypt just saved your life, would you really go tell reddit? The dialogue feels constructed; there's no insight about the experience. It's more likely that it's a fabrication by a district attorney, to be cited in the future (just as you have here).

Edit: further evidence for this being a fake:

* This supposedly happened in Februrary 2004, back when TrueCrypt was version 1.0a and barely known.

* His story suggests that his laptop's system drive was encrypted. TrueCrypt added system disk encryption in version 5.0 in 2008.

* He slips up and says he used AES encryption; this is noticed in the comments and he edits it out (I assume).

It does; OTOH people post some outrageous shit w/r/t their adventures with the law on Reddit. Yesterday, for example, some guy posted pics of an FBI tracking device he found on the underside of his car (http://www.reddit.com/r/reddit.com/comments/dmh5s/does_this_...). A couple months ago some guy wrote an AMA a days before he was to start a multi-year bid in Federal. (http://www.reddit.com/r/IAmA/comments/chc3k/iama_fella_getti...)

Personally I am inclined to believe.

You may be right. There's a good chance that the AMA is fake.

Meanwhile, here's a much more reputable source (pointed out elsewhere in these comments) that indicates that this issue is not yet resolved and is currently being tested.

http://cyb3rcrim3.blogspot.com/2009/03/5th-amendment-bummer....

http://cyb3rcrim3.blogspot.com/2010/04/passwords-and-5th-ame...

You cannot be compelled to incriminate yourself in the US. However, that doesn't mean you can't be compelled to give up your password, since it's not the act of giving up the password that is incriminating.*

As an analogy, if you had a safe that contained incriminating evidence and you hid the key, you could be compelled by the court to reveal the location of the key.

* As far as I know (IANAL) whether or not giving up a computer password is considered self-incrimination or not is still undecided.

It's not analogous to testifying against yourself (Fifth Amendment). It's analogous to forcing you to give them a key to a door so they can search your basement.

Maybe. It is still not clear. In this case "your basement" consists of information (bits). The 5th protects you from divulging information that would incriminate yourself.

If they want to take your hard drive or take your computer as evidence they can take it by issuing a warrant. They can argue that your encrypted stuff is really dangerous because it is encrypted but I think they shouldn't be able to make you talk and divulge the encrypted info.

Now that is what "I think" should happen. I believe there will occur some high profile case, that will lead to creation of laws that will either force key escrow, ban encryption, or force you to divulge the password under threat of jail time or very high fines.

In the USA of today you can be compelled into doing anything the government considers a matter of national security. It all changed starting with the Patriot Act. American citizens have no inalienable rights anymore merely those that are not inconvenient to the government.

Apparently not, although I though I had read of an earlier case where there was a judge that ruled that a password had to be revealed.

http://www.usatoday.com/tech/news/techpolicy/2008-02-07-encr...

Yeah that's the border - slightly different, though they also set up border checks hundreds of miles "inland" around the country which makes their intentions suspect.

What I hate about all these cases is it comes down to child porn which makes it impossible to defend. Why can't it be something mundane that actually shows why this is a REALLY bad idea.

I just saw a scary university lecture on youtube on why you should NEVER talk to to the police, even to "explain things", even if you know you are 1000% not guilty of whatever they are after. So now it makes perfect sense to me that if they want to go trolling across your hard drive, they are doing exactly that - you are testifying against yourself for whatever charges they want to invent afterwards.

In the US there are conflicting precedents at the moment, so it really depends on where the case is being heard. At the moment the case that seems to have the strongest route to the Supremes is the one involving child porn at the border, allowing the court to address both the "are passwords protected" question and the legality of laptop border searches. Unfortunately for the cyberliberty crowd this particular case is the last one they want to see before the court, the facts are not good and it provides an easy excuse for a "law and order" majority on the court to significantly extend the government's reach.

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