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The Encryption Issue

Does the 5th Amendment protect U.S. citizens from having to unlock their encrypted device?

  • Yes

    Votes: 7 87.5%
  • No

    Votes: 1 12.5%

  • Total voters
    8

P@triot

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The encryption issue is one of the rare issues where I genuinely see the case made by both sides. On one hand, law enforcement rightfully states that a legal and proper warrant grants them access to whatever is outlined in the warrant. On the other side, defendants rightfully state that their 5th Amendedments rights regarding self-incrimination means that they don't have to provide evidence to law enforcement and/or the prosecution (which is what unlocking an encrypted device does - it provides the evidence). So I'm curious as to how the USMB community leans on this issue.

* Please note that this is not an issue about preventing encryption or whether the government should have "keys". I adamantly and vehemently believe that we have every right to have encrypted devices to protect our data and that the government has no business having a copy of the encryption keys. This is simply whether a warrant should force a person to unlock their device or whether the 5th Amendment protects their right to not unlock a device.
 

Billy_Kinetta

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That's going to be a very argumentative issue. I would lean toward yes, the 5th applies.
 
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P@triot

P@triot

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That's going to be a very argumentative issue. I would lean toward yes, the 5th applies.
And I personally would not argue that with you. However, I do see the point of law enforcement who says "wait a second here - we have a legitimate warrant which grants us the legal grounds to access the content on that device".

Either way - I think a constitutional amendment is called for. Either to affirm that the 5th Amendment protects people from having to unlock their device on the grounds of "self-incrimination" or that a warrant does in fact require citizens to unlock their device.

It's a very unhealthy situation to leave an issue like this ambiguous. For one thing, we've seen one judge handle it one way while another judge handles it another. Judges were never intended to wield that sort of power. The people should decide how to address/handle and encryption, it should he crystal clear in the U.S. Constitution and then judges should just be empowered to properly adhere to it.
 
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P@triot

P@triot

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I would lean toward yes, the 5th applies.
As I absolutely have not made up my mind yet on this issue - I just wanted to just throw this out there and get your thoughts.

I have a right to protect my home from intruders - up to and including lethal force. However, that does not apply if law enforcement arrives at my residence with a legitimate warrant. I may not shoot them to prevent them from entering and searching. Now...does that mean I am "self-incriminating" because I'm not preventing law enforcement from searching my house even though I might have evidence in my house that incriminates me? Of course not. So in theory, couldn't we say the same thing about the encrypted device?
 

Billy_Kinetta

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That's going to be a very argumentative issue. I would lean toward yes, the 5th applies.
And I personally would not argue that with you. However, I do see the point of law enforcement who says "wait a second here - we have a legitimate warrant which grants us the legal grounds to access the content on that device".

Either way - I think a constitutional amendment is called for. Either to affirm that the 5th Amendment protects people from having to unlock their device on the grounds of "self-incrimination" or that a warrant does in fact require citizens to unlock their device.

It's a very unhealthy situation to leave an issue like this ambiguous. For one thing, we've seen one judge handle it one way while another judge handles it another. Judges were never intended to wield that sort of power. The people should decide how to address/handle and encryption, it should he crystal clear in the U.S. Constitution and then judges should just be empowered to properly adhere to it.

Such a "legitimate warrant" still does not have the authority to force an individual to dispense with the right, and self-incriminate. The 5th is quite clear.
 

Billy_Kinetta

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I would lean toward yes, the 5th applies.
As I absolutely have not made up my mind yet on this issue - I just wanted to just throw this out there and get your thoughts.

I have a right to protect my home from intruders - up to and including lethal force. However, that does not apply if law enforcement arrives at my residence with a legitimate warrant. I may not shoot them to prevent them from entering and searching. Now...does that mean I am "self-incriminating" because I'm not preventing law enforcement from searching my house even though I might have evidence in my house that incriminates me? Of course not. So in theory, couldn't we say the same thing about the encrypted device?

You are obligated to let them in. You are not obligated to lead them to what they may be seeking.
 
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P@triot

P@triot

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I would lean toward yes, the 5th applies.
As I absolutely have not made up my mind yet on this issue - I just wanted to just throw this out there and get your thoughts.

I have a right to protect my home from intruders - up to and including lethal force. However, that does not apply if law enforcement arrives at my residence with a legitimate warrant. I may not shoot them to prevent them from entering and searching. Now...does that mean I am "self-incriminating" because I'm not preventing law enforcement from searching my house even though I might have evidence in my house that incriminates me? Of course not. So in theory, couldn't we say the same thing about the encrypted device?

You are obligated to let them in. You are not obligated to lead them to what they may be seeking.
Yeah - so isn't unlocking the phone just "letting them in"? It's like unlocking the door to your residence. :dunno:
 
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P@triot

P@triot

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Such a "legitimate warrant" still does not have the authority to force an individual to dispense with the right, and self-incriminate. The 5th is quite clear.
Oh I agree completely. I think where if becomes hazy is: is it self-incriminating to unlock an encrypted device? We don't consider it self-incriminating to unlock a door.

That's why I think we need a definitive answer to that and an amendment which defines it one way or the other. I think the American people should decide rather than a judge.
 

task0778

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"This is simply whether a warrant should force a person to unlock their device or whether the 5th Amendment protects their right to not unlock a device."

I say yes it should, if you are stupid enough to leave incriminating evidence on any device, encrypted or not, and law enforcement has a warrant for that device then I think you should be required to unlock that device. However, if you copy that evidence onto a flash drive or something similar I don't think you are required to tell them about it unless the warrant specifies that device too. I'd store that flash drive elsewhere and remove any evidence of it's existence.
 
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P@triot

P@triot

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However, if you copy that evidence onto a flash drive or something similar I don't think you are required to tell them about it unless the warrant specifies that device too.
Absolutely. That would definitely be violating the 5th Amendment. No question about it.
 

SavannahMann

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The encryption issue is one of the rare issues where I genuinely see the case made by both sides. On one hand, law enforcement rightfully states that a legal and proper warrant grants them access to whatever is outlined in the warrant. On the other side, defendants rightfully state that their 5th Amendedments rights regarding self-incrimination means that they don't have to provide evidence to law enforcement and/or the prosecution (which is what unlocking an encrypted device does - it provides the evidence). So I'm curious as to how the USMB community leans on this issue.

* Please note that this is not an issue about preventing encryption or whether the government should have "keys". I adamantly and vehemently believe that we have every right to have encrypted devices to protect our data and that the government has no business having a copy of the encryption keys. This is simply whether a warrant should force a person to unlock their device or whether the 5th Amendment protects their right to not unlock a device.

Let's say I have a safe in my house. The police serve the warrant. They have the legal right to search and seize things that are covered by the warrant. They demand the combination to the safe. I remain mute and refuse. They threaten to call a locksmith and crack the safe. I still remain mute.

The locksmith opens the safe but in the process destroys the documents inside. They were not boobytrapped, he torched them through ineptitude. I did not destroy evidence. I did not deny them the right to search. I just made them work for it.

Encryption is the same thing. Unlocking and then decrypting the files for the cops is like opening the safe. They have a right to search but I don't have to explain anything.

Let's say I buried the incriminating evidence in my yard. The police serve the warrant. They search the house and find nothing. I did not destroy the evidence. If they look and don't find it is on them.

I say the police don't have the right to force me to unlock the phone. They can seize it. They can try and force entry. If it deletes everything automatically because of what they did it is not my fault. I complied with the warrant. I surrendered the property for their inspection. The rest is on them.
 

bripat9643

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That's going to be a very argumentative issue. I would lean toward yes, the 5th applies.
And I personally would not argue that with you. However, I do see the point of law enforcement who says "wait a second here - we have a legitimate warrant which grants us the legal grounds to access the content on that device".

Either way - I think a constitutional amendment is called for. Either to affirm that the 5th Amendment protects people from having to unlock their device on the grounds of "self-incrimination" or that a warrant does in fact require citizens to unlock their device.

It's a very unhealthy situation to leave an issue like this ambiguous. For one thing, we've seen one judge handle it one way while another judge handles it another. Judges were never intended to wield that sort of power. The people should decide how to address/handle and encryption, it should he crystal clear in the U.S. Constitution and then judges should just be empowered to properly adhere to it.

They can access the device all they want, but where does the Constitution give them the right to force manufacturers and customers to make it easy for them? It would be easy to catch a lot of criminals if we allowed to make house-2-house searches without a warrant, but the Constitution doesn't allow that for a reason.

Police already have the ability to get a warrant to make someone unlock their device. Unfortunately they have no right to use torture on the person, so they still require compliance. And they certain don't have the right to intercept cell phone calls and unencrypt them.
 

SavannahMann

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"This is simply whether a warrant should force a person to unlock their device or whether the 5th Amendment protects their right to not unlock a device."

I say yes it should, if you are stupid enough to leave incriminating evidence on any device, encrypted or not, and law enforcement has a warrant for that device then I think you should be required to unlock that device. However, if you copy that evidence onto a flash drive or something similar I don't think you are required to tell them about it unless the warrant specifies that device too. I'd store that flash drive elsewhere and remove any evidence of it's existence.

If you have a safe the police can't force you to give them the combination. you aren't committing a crime to stand aside and let them search. Finding it is on them. Opening the safe is their problem.

A search warrant means I have to let them in the house. I don't have to walk them to the secret panels or unlock drawers or safes. They get to search. Getting into the secret panels and locked drawers is on them
 
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P@triot

P@triot

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The encryption issue is one of the rare issues where I genuinely see the case made by both sides. On one hand, law enforcement rightfully states that a legal and proper warrant grants them access to whatever is outlined in the warrant. On the other side, defendants rightfully state that their 5th Amendedments rights regarding self-incrimination means that they don't have to provide evidence to law enforcement and/or the prosecution (which is what unlocking an encrypted device does - it provides the evidence). So I'm curious as to how the USMB community leans on this issue.

* Please note that this is not an issue about preventing encryption or whether the government should have "keys". I adamantly and vehemently believe that we have every right to have encrypted devices to protect our data and that the government has no business having a copy of the encryption keys. This is simply whether a warrant should force a person to unlock their device or whether the 5th Amendment protects their right to not unlock a device.

Let's say I have a safe in my house. The police serve the warrant. They have the legal right to search and seize things that are covered by the warrant. They demand the combination to the safe. I remain mute and refuse. They threaten to call a locksmith and crack the safe. I still remain mute.

The locksmith opens the safe but in the process destroys the documents inside. They were not boobytrapped, he torched them through ineptitude. I did not destroy evidence. I did not deny them the right to search. I just made them work for it.

Encryption is the same thing. Unlocking and then decrypting the files for the cops is like opening the safe. They have a right to search but I don't have to explain anything.

Let's say I buried the incriminating evidence in my yard. The police serve the warrant. They search the house and find nothing. I did not destroy the evidence. If they look and don't find it is on them.

I say the police don't have the right to force me to unlock the phone. They can seize it. They can try and force entry. If it deletes everything automatically because of what they did it is not my fault. I complied with the warrant. I surrendered the property for their inspection. The rest is on them.
You make a very compelling case. I was kind of viewing unlocking the phone like unlocking the door for the warrant. But what you said here makes a lot of sense.
 

Borillar

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The encryption issue is one of the rare issues where I genuinely see the case made by both sides. On one hand, law enforcement rightfully states that a legal and proper warrant grants them access to whatever is outlined in the warrant. On the other side, defendants rightfully state that their 5th Amendedments rights regarding self-incrimination means that they don't have to provide evidence to law enforcement and/or the prosecution (which is what unlocking an encrypted device does - it provides the evidence). So I'm curious as to how the USMB community leans on this issue.

* Please note that this is not an issue about preventing encryption or whether the government should have "keys". I adamantly and vehemently believe that we have every right to have encrypted devices to protect our data and that the government has no business having a copy of the encryption keys. This is simply whether a warrant should force a person to unlock their device or whether the 5th Amendment protects their right to not unlock a device.

Let's say I have a safe in my house. The police serve the warrant. They have the legal right to search and seize things that are covered by the warrant. They demand the combination to the safe. I remain mute and refuse. They threaten to call a locksmith and crack the safe. I still remain mute.

The locksmith opens the safe but in the process destroys the documents inside. They were not boobytrapped, he torched them through ineptitude. I did not destroy evidence. I did not deny them the right to search. I just made them work for it.

Encryption is the same thing. Unlocking and then decrypting the files for the cops is like opening the safe. They have a right to search but I don't have to explain anything.

Let's say I buried the incriminating evidence in my yard. The police serve the warrant. They search the house and find nothing. I did not destroy the evidence. If they look and don't find it is on them.

I say the police don't have the right to force me to unlock the phone. They can seize it. They can try and force entry. If it deletes everything automatically because of what they did it is not my fault. I complied with the warrant. I surrendered the property for their inspection. The rest is on them.
Very well put. The authorities may obtain a warrant and seize your encrypted data, but you are under no obligation to make it readable for them. Of course, unless you are using something stronger than your run of the mill PGP encryption, they can probably break it.
 

SavannahMann

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The encryption issue is one of the rare issues where I genuinely see the case made by both sides. On one hand, law enforcement rightfully states that a legal and proper warrant grants them access to whatever is outlined in the warrant. On the other side, defendants rightfully state that their 5th Amendedments rights regarding self-incrimination means that they don't have to provide evidence to law enforcement and/or the prosecution (which is what unlocking an encrypted device does - it provides the evidence). So I'm curious as to how the USMB community leans on this issue.

* Please note that this is not an issue about preventing encryption or whether the government should have "keys". I adamantly and vehemently believe that we have every right to have encrypted devices to protect our data and that the government has no business having a copy of the encryption keys. This is simply whether a warrant should force a person to unlock their device or whether the 5th Amendment protects their right to not unlock a device.

Let's say I have a safe in my house. The police serve the warrant. They have the legal right to search and seize things that are covered by the warrant. They demand the combination to the safe. I remain mute and refuse. They threaten to call a locksmith and crack the safe. I still remain mute.

The locksmith opens the safe but in the process destroys the documents inside. They were not boobytrapped, he torched them through ineptitude. I did not destroy evidence. I did not deny them the right to search. I just made them work for it.

Encryption is the same thing. Unlocking and then decrypting the files for the cops is like opening the safe. They have a right to search but I don't have to explain anything.

Let's say I buried the incriminating evidence in my yard. The police serve the warrant. They search the house and find nothing. I did not destroy the evidence. If they look and don't find it is on them.

I say the police don't have the right to force me to unlock the phone. They can seize it. They can try and force entry. If it deletes everything automatically because of what they did it is not my fault. I complied with the warrant. I surrendered the property for their inspection. The rest is on them.
You make a very compelling case. I was kind of viewing unlocking the phone like unlocking the door for the warrant. But what you said here makes a lot of sense.

I know. That is how a lot of people view the issue. The House example would be more like this. Once a year the police visit every address with a warrant. Once the police arrive you would be required to give them the evidence against you for whatever crimes you may have committed because they have a warrant.

The warrant gives the police the authority under the fourth amendment to seek the evidence on private property. It does not eliminate your fifth or sixth amendment rights.

That was one of my peeves with the National Security Letters under the Patriot Act. With that letter signed not by a judge but some Agent I would lose my fourth, fifth, and sixth amendment rights. I could not call an attorney. I could not refuse to answer questions, and would lose the right to be secure in my person and papers without probable cause or a warrant.

I always wondered what would happen. Let's say you got a letter that said you could not contact anyone. You call your lawyer and are arrested for the crime of contacting your attorney. While you are arrested you are advised of your rights under the Miranda decision including the right to an attorney for the crime of contacting your attorney.

The Feds had an answer for that of course. They would just hold you indefinitely without actually charging you with a crime. Which still violated your fifth amendment rights. You can't be deprived of life, liberty, or property except by due process of law.

Don't get me started on civil asset forfeiture.
 

Billy_Kinetta

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I would lean toward yes, the 5th applies.
As I absolutely have not made up my mind yet on this issue - I just wanted to just throw this out there and get your thoughts.

I have a right to protect my home from intruders - up to and including lethal force. However, that does not apply if law enforcement arrives at my residence with a legitimate warrant. I may not shoot them to prevent them from entering and searching. Now...does that mean I am "self-incriminating" because I'm not preventing law enforcement from searching my house even though I might have evidence in my house that incriminates me? Of course not. So in theory, couldn't we say the same thing about the encrypted device?

You are obligated to let them in. You are not obligated to lead them to what they may be seeking.
Yeah - so isn't unlocking the phone just "letting them in"? It's like unlocking the door to your residence. :dunno:

More like unlocking your mind.
 

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