From: kadie@cs.uiuc.edu (Carl M Kadie)
Subject: Re: Fifth Amendment and Passwords
Organization: University of Illinois, Dept. of Comp. Sci., Urbana, IL
Lines: 42

ashall@magnus.acs.ohio-state.edu (Andrew S Hall) writes:

>I am postive someone will correct me if I am wrong, but doesn't the Fifth
>also cover not being forced to do actions that are self-incriminating?
[...]

[From Mike Godwin <mnemonic@eff.org>, posted with permission - Carl]

Sadly, it does not. Suspects can be compelled to give handwriting and
voice exemplars, and to take blood and DNA tests.

> e.g. The police couldn't demand that you silently take them to where the
> body is buried or where the money is hidden.

No, but they could compell you to produce the key to a safe where, as it
happens, evidence that will convict you is stored. 

The crypto-key disclosure issue hasn't come up yet, but current law
suggests that it's a loser for the defendant--he'll be compelled to turn
over the key.

The test for compelled self-incrimination is whether the material to 
be disclosed *in itself* tends to inculpate the discloser. In the example
I gave above, the safe key itself has no testimonial value--ergo, it can
be disclosed under compulsion (e.g., subpoena duces tecum).

Moreover, the government can always immunize the disclosure of a crypto
key--compelling you to disclose the key at the price of not using the fact
of your disclosure as evidence in the case against you. Of course, they
can use whatever they discover as a result of this disclosure against
you.


--Mike





-- 
Carl Kadie -- I do not represent any organization; this is just me.
 = kadie@cs.uiuc.edu =
