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Name Game
Grand Rapids, MI
reply to Dona Kirklan

Re: Is it possible to quit Google?

Nice try .... I still say computers are not people and the 5th does not apply...

People also post titles like this on the net and give an opinion...
Judge Rules Refusing to Decrypt Hard Drive is Covered by Fifth Amendment

» ··· ryption/

But as one comment put it...

"There a few half-truths in this article.

For one, the Fifth Amendment DOES have your back if you're talking about a combination-lock safe. The courts have distinguished between safes that lock with a physical key - which you can be forced to turn over - and safes that lock with combinations, because that requires you to turn over information. Telling the combo or entering it yourself is protected by the 5th as it's considered a "testimonial" act.

Also, neither of the previous two cases were legal precedent. To have precedential weight, a case must have been decided by a superior court, and the precedent applies only to the courts underneath the deciding body.

The Colorado case has no precedential weight, because it was decided by a trial court, and the appeals hasn't happened yet.

The Vermont case WAS decided by the appellate court, so its decision would be binding precedent only for the Vermont courts in that circuit, BUT, that case has been mis-stated.

The appellate court there did not rule on the encryption issue. They ruled that the decrypted contents of the hard drive were admissable because some of them had already been seen by law enforcement.

The issue wasn't that part of the drive was encrypted and part wasn't; he used whole-disk encryption. But as he crossed the border, his laptop was ON and officers were able to find the illicit content. Once he was arrested and it shut off, officers were unable to get it to power on again without the encryption key.

So the court ruled that the entirety of the contents were admissible under "inevitable discovery."

[Also, he voluntarily de-crypted the drives and then just challenged the admissibility.]

All things said, 5th Amendment protections for encryption keys is probably proper, despite the power imbalance between law enforcement and criminals. "
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