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Comment by apaprocki | Hacker News Reader

Interesting thought experiment… does the right to remain silent prevent a USB device from being placed on your head?

The 5th amendment protects you from being a witness against yourself [0]. So to me it seems pretty clear that in the US this would not be allowed.

But then again, it seems as though being forced to reveal your password is not necessarily a violation of the 5th amendment [1]. I can't quite understand why the supreme court hasn't made a decision on this one yet. There are a lot of conflicting decisions now.

0: `nor shall be compelled in any criminal case to be a witness against himself`

1: https://www.aclu.org/news/privacy-technology/police-should-n...

But the third party doctrine lets the prosecution have all that sweet incriminating data once it's on someone else's server.

Ah but isn't the third party doctrine predicated on the data being voluntarily given to a third party? "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties."

See Smith vs Maryland: https://www.theatlantic.com/technology/archive/2013/12/what-...

The thought process behind being compelled to provide a password is that you can be compelled to provide it to (indiscriminate) computer; which is currently thought of similarly to being summoned, as opposing this would be contempt of court or obstruction of justice.

Forcing someone to do something without payment and to their own detriment should run afoul of both the 13th and 5th amendment respectively; but if it was already reasonably and obviously known that an encrypted drive contained CSAM or national security secrets, and you have already been duly convicted of that, then it would not apply ("except as a punishment for crime whereof the party shall have been duly convicted," ), and you can be coerced into the "labor" of decryption - although double jeopardy would seem to apply, so you cannot be further charged for anything found, once decrypted.

I suggest making your passwords themselves incriminating, just to throw in another constitutional hiccup.

Not that any of this would matter in practice, but it is quite a legal thought experiment.

I'm not sure that right will protect you. The right applies to "something you know" not "something you have". You have a brain.

A good analogy is smartphone passwords. Authorities can't make you share your password (something you know), but they can make you unlock you phone with a fingerprint (something you have).

You are forgetting "something you are"

I'm not familiar with any court rulings on that

Well, time to get more familiar because I need you to prove my point for me.

That is an interesting thought experiment. IANAL, but I'm pretty sure putting something on your head to essentially coerce information would be a violation of the right to remain silent. I don't know whether it would fall in the fingerprint vs spoken password space in terms of subject-to-search-warrant.

Fortunately this tech is currently very person-specific and have to be trained to the person. So to thwart it you'd just have to think applesauce over and over.

Yes, just like it prevents the prosecution from bringing in a psychic that will speak your thoughts to the court.

Yes, just like it prevents the prosecution from bringing in a cop that will testify against you to the court.

Yes, just like it prevents the prosecution from bringing in a hair expert that will testify to the court that your hair was on the crime scene.

Yes, just like it prevents the prosecution from bringing in a blood splatter expert to testify to the court only you could make this specific splatter.

As you can see, truth or efficacy isn't a prerequisite of being admitted by the court.

There's testimony about you, and there's your testimony.

One is self-incriminating, the other isn't.

In France it's common for the court to ask to a psychoanalyst or a psychologist (not to a psychic) to tell what the defendant was "really" thinking and feeling, in order to decide to decide whether the defendant was responsible for his actions or not.

“There is no crime or offense when the defendant was in a state of insanity at the time of offense, or when he was constrained by a force he could not resist.

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9387428/

This is also possible (not "common", but possible and no one bats an eye as it happens multiple times a year) in America, it's called an insanity defense and it requires expert testimony by a psychologist.

Currently, they can't compel you to give up your fingerprint, but can force a password. So I think thoughts would count as a biologic rather than a generated phrase in that aspect.

I think you have it backwards? In most jurisdictions I think biometrics can be forced but divulging knowledge cannot.

Wasn't it trained to her brain specifically?

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