APLG'ers, what do you think?
Here is a very interesting case that may be hard to look at objectively due to the topic but yet that is what judges must do in deciding thes cases brought before them. Should a person be forced to turn over their password for their computer files to the gov't to complete an investigation or would that violate their 5th amendment rights to freedom from self-incrimination.
Feel free to provide a short comment for extra credit about this case (I don't want to know your opinion about the topic this man is being investigated for...that's not the issue.)
A Digital Dilemma
I also welcome any comments on the Judicial Branch now that you have had 40 cases presented to you: final thoughts on the Court, questions about the Court, feelings about any of the cases presented to you, topics reviewed by the Court etc.
Mr. Thompson
posted by erdecker @ 7:14 AM
29 comments
29 Comments:
I think that he has the right under his fifth amendment rights not to reveal his password. And the FBI needs to stop with this fear mongering crap about how this is letting terrorists and other criminals get away. We should never have to sacrafice our rights for that. Didnt ben franklin say something along the lines of "those who give up personal liberties for temporary safety deserve neither"?
"Those who give up essential liberties for temporary safety deserve neither liberty nor safety." - Benjamin Franklin
I do not think that the government has the right to force the man to give the password to his computer because, as he puts it, it is a form of self-incrimination. The rights that are provided to the incriminated are intended to protect those who are innocent. Isn't there a quote about letting 100 guilty men go free before seeing 1 innocent man in jail? This presents the perfect situation. It is the burden of the state to find other evidence of child pornography. While I do not support his work by any means, he still has the right to keep from incriminating himself.
So if a man has a house, and the gov't wants to search his house, he may lock his door. The gov't gets a warrant to search his house but the door is locked. The gov't asks the man to open his door and he refuses because he fears he might incriminate himself if he unlocks the house. Would the gov't require him to open the door so they can search or would the door remain locked and thus no search taking place? Hmmmmm???
I agree with that anonymous comment. That whole "key to a safe/in your mind" argument by the judge did'nt really make sense. And didn't he unlock it once for the first inspector already?
Ben H
This comment has been removed by the author.
Mr. Anonymous, the dilemma you present is exactly what the judge says is forbidden and unjust. The idea of a warrant is to allow the government to find evidence to incriminate a person; however, when that warrant infringes on someone's constitutional rights then it is improper. If the man unlocks the house, he incriminates himself, an obvious fifth amendment contradiction. If the man does not unlock the house, he is found in contempt of court and sent to jail. Or, he could lie under oath, saying that the things weren't his, that the house wasn't his, that the things were planted. Fourth option: plead guilty. No matter how you approach this, the defendant gets the short end of the stick, and that is not allowed by the Fifth Amendment.
I want to know more about what Kerr talks about ("If you admit something to the government, you give up the right against self-incrimination later on,"). Are there other court examples where people have given up their amendment privileges?
"a person cannot be compelled to give up a safe combination because that would "convey the contents of one's mind,'' which is a "testimonial" act protected by the Fifth Amendment, Niedermeier said." I think that this quote really explains how I feel about it.I don't really agree with "anonymous" because a password is much different than a lock. It's mental, not physical. This reminds me of the West Virginia State Board of Educatve vs Barnette just because it deals kind of with the freedom to not speak. Well, not so much. Clearly more 5th amendment freedom from self-incrimination. But I really agree the that the government cannot force you to say things. And I agree with Paulina also, Kerr and that line? Does that actually happen? I'd be curious as well to find out when/how.
(ps. eww to the article.)
Under the fifth amendment Boucher has every right to keep the password to himself.
P.S.
contempt of court, that's not following a courts proceedings or 'rules' right? BUT, if you follow the laws the court upholds how can you be held in contempt?
Also, I think it's weird that these cases have so much impact on how the rest of the country looks at the law (abortion, capital punishment, etc). Those cases kept showing up time and time again and a lot of times the Supreme Court changed their decision. Every single case with each person is different.... so how is it fair to go along with their decisions when even they aren't consistent?
I know that the guy says it would violate the fifth ammendment, but when I first read the article I immediately thought of Nixon. That might be completely random, I'm not entirely sure. (I would have to explain my reasoning in person.) Anwyays, I would agree with the one who stated that he gave up his right to self-incrimination when he originally admitted that it was his computer, and showed the information to the agents for the first time. He should have to give up the password.
katie b
He should have to give his passwords if they present a warrent because even though it is less of a physical thing such as searching a house, the police obviosly has probable evidence to show something is there and it belongs to him. And if they say it is with the 5th ammendment so he doesnt have to reveal what might incriminate him, he already had given some information to the government so like what Kerr said,
"If you admit something to the government, you give up the right against self-incrimination later on,"
But if that is similar to a warrant for searching a house, where do you draw the line between searching property and searching someone's mind. I think the computer should be covered by the 5th Amendment because the government is asking him to reveal a password that would incriminate himself. It's up to the government to get the information legally and if they can't do that then they don't have a case against Boucher.
i think he should have to give up his password, if they know he has been looking at child porndoesnt that give the FBI probable cause? and i sgree with haley pleaing to the fifth would be understandable but he already had told them that he does like to look and child porn so he has already given up his rights...
I think the man has every right not to reveal his passwrods to the government. This goes beyond whatever criminal acts he may have been involved in, this man is protected under a couple of amendments of the Constitution, such as the forth, which states that people have the right to be secure in their persons and houses against unreasonable seaches, and also the self-incrimination part of the fifth. I also thing the FBI had no reason to bring terrorists into this; this is just a poor example they are using to get the public to agree with them. Not every violation to a law, or suspision of a violation, means that terrorists will find a way to hack into security measures, and it's no reason to disregard the Constitution.
I think a warrant should be issued to search the laptop on the basis of probable cause, similarly to searching someone's [locked?] house.
Dool-dool.
The fifth amendment was created to protect citizens from self-incrimination, and the way to view this is through the original intent of the Constitution. When those dudes wrote it, they probably intended to protect the citizens from incriminating themselves in a court of law. The computer is something way above the happenings of way back when. A password is like if someone locked a safe, then buried the key somewhere. The person has every right under the constitution to keep that information to himself and nothing (other than waterboarding) should be able to get that information out of him willingly. Therefore, I believe he has every right to hold onto his password. Let the government run their program to find the password. They'll get it eventually.
i get what people are saying about his rights but its just like that one supreme court case California v. Acevedo i think. If the police have probable cause they should be able to search his computer and he should have to give up his password
While the government cannot take away anyone's rights, any person can give them up. Constitutionally, the man cannot be "compelled in any criminal case to be a witness against himself." While the court cannot constitutionally force him to reveal his password to them, I think that on the basis of probable cause or a search warrant, the court can force him to provide access to the suspect files without actually revealing his password.
On the "probable cause": This man had already incriminated himself when he willingly admitted it was his computer and showed the inspector the child porn. Just because he did incriminate himself doesn't mean the court can't use the evidence as probable cause or to issue a warrant.
Andrew H
I agree with the court's decision to let the man keep the password to himself. I don't understand how or why the police officer checked the man's computer. I side by the 5h amendment's doctrine to protect the right for person to not give up their password no matter what kind of self-incriminating content is on them. I don't see this as a open and locked door case where there is a search warrant involved because this is a different beast. If anything is done I would suggest using the password decrypting program. Otherwise is seems very plausible for the officials to convict the man of transporting the contraband they've already viewed, sentencing him to 20yrs, and repossessing his computer
I agree with Hayley that if the government has a a search warrant then they should be allowed to search his laptop. Just like searching houses, there has to be a probable cause. I don't think the government should ever be able to search any of your property without a warrant.
Boucher lost his privilege to the fifth amendment when he admitted to having child pornography on his laptop. He never had to tell anyone this he had the right to remain silent. He gave the government probable cause, and the government should be allowed to do something about it.
I think the prosecutors can have the inspector testify in court as to what he/she saw on the laptop. According to the 4th Amendment, they could prove that they have a reasonable cause to obtain a search warrant for the laptop. They could hack into the computer and use the other files to convict Sebastien Boucher. However, the 5th Amendment protects Boucher from witnessing against himself, so he cannot be forced to give up his password because that would be incriminating himself.
I think that it is unconstitutional for the court to order the man to give up his password, but I also think that with probable cause it is reasonable to ask of him. It seems to me that if this man is willing to admit that yes it's his computer and yes he has looked at porn (adult and child) then the court has a good enough cause to think he is guilty. Also I think this man is somewhat already giving up his right against self-incrimination because he obviously has some reason not to show the government his files. I think if he was really "just trying to protect his rights" that he should have brought up the fact that yes it would go against the 5th amendment, but I also think that he should just type in the password for the investigators. That way he would prove his point (assuming he is innocent) and make the investigators/court look stupid.
As Kerr said i think he lost all of his 5th amendment rights when he admitted they were his. And since the officers had the evidence against him and now he refuses to re-open the files on his computer, can't he be somehow charged with stealing evidence from the federal government? I don't know if that would work but its just a thought.
Under the 5th amendment he does have the right to not reveal his password. He however, has already entered a password to unlock a different drive on his computer and not wanting to unlock another drive shows he may have reason to hide it. Not opening the drive could ultimately be more suspicious than if he had just opened it because according to him all he had was "adult pornography" on that drive, which is not illegal. I agree with Kerr's statement..
"If you admit something to the government, you give up the right against self-incrimination later on," -Kerr
I’m a little confused; I thought that the government should not be able to get the combination based on the Supreme Court case Reno v. American Civil Liberties Union. I thought that the government is unable to regulate what the internet produces. So how does this pertain to files downloaded to a computer from the internet? If someone could clear this up that would be great.
Julian
Sorry APLGers, the polls are closed and there is no more extra credit available. I am entering final grades as I types this.
Mr Thompson
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