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Is the 5th Amendment an absolute protection? For those who need a primer, I supply the text:
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| Yes please. |
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Refer now to the opening question.
Answer? No.
You cannot begin to testify and later change your mind and invoke 5th Amendment rights. You gotta start what you finish in other words.
The question then becomes how far does the 5th Amendment extend? To your computer?
This Wired version of the story includes a PDF to your computer of the judge's decision.
Before I get into my opinion, lemme also point out a few other exceptions to required testimony:
Attorney - Client
Doctor - Patient
Minister - Congregant
As an ordained minister, I am exempt from the legal requirements to testify if someone comes to me in my office as a minister.
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| IT'S MINE (Ok, bad pun referencing personal possessions) |
That outta the way, some issues.
Wired lists the computer as "hers." Does this mean she bought it? Her personal property or more a case of "hers" in the sense that her employer provided it? Was she employed by another? Self employed?
That matters, 'cause it if was not her computer but belonged to her employer, then any records on it are subject to her employer's inspection. That one was settled a while back by SCOTUS.
If she doesn't actually own the computer, open them files.
Now if she actually owns the computer what then? Ah so. More complicated.
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| Nuf said. |
Still feel the same way about encrypted computer files? Until that line of reasoning popped into my head, I was leaning toward the idea of "Nope, can't get them files."
Now I ain't so sure. And, as you will see in a moment, I am even more uncertain about this.
What is the real difference between personal information, such as an accounting ledger of drug deals kept in a personal safe and those same records stored as encrypted data in a personally owned computer?
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| RESISTANCE IS USELESS! |
Aha. Surely you didn't think it was gonna be that easy.
Nother question, can they force you to open the safe? Arg. I don't know.
I do know you can passively resist law enforcement (which annoys them) and passively resist a judge (which leaves you in an Iron Bar Hotel room). But, sometimes ya gotta do what ya gotta do (even if the alternative is being tossed out an airlock, see image at right).
OK, say the safe is wired to destroy all the documents inside if someone tries to break in. Can you be forced to open the safe? Again, damfino.
I rather suspect a judge could (as will happen the above laptop case) charge you contempt of court. Whether or not such a contempt charge would stand a SCOTUS scrutiny, I know not. The first issue to be examined would be the judge's order to open the safe or computer. If that was legal, then contempt should stand. If you cannot be forced to open said storage, I suspect contempt charges would have to be tossed.
One thing I am certain of, if you are forced to open said storage device and in the process of doing so, trigger a self destruct of the records inside, then you will be charged with a crime - destruction of evidence at minimum.
Like my bud Mike Moore said on FB, this is one case I hope gets to SCOTUS.
I remember a maxim I was told in college by one of my favorite professors. I have MOSTLY applied this to my life, but a few times I did not. Some of those few times came around and shredded my posterior.
"If you don't want to see it in print, don't write it."
In other words, don't make a permanent record if you're worried it can be used against you later.
I'm no lawyer, but here is my take. Computers, Pads, Smart Phones etc. fall under the heading of property like houses, businesses etc. Law enforcement cannot just break into said property to find evidence without a warrant unless there is some hard evidence that a crime is being committed. However, if they receive a legal search warrant they can search everywhere and if so desired can ask you to open the aforementioned safe. Computers come under that same heading. If the police suspect that evidence of a crime exists on said computer, they can get a warrant requiring owner to show them the files on the computer. The owner can of course refuse, but will get in trouble for it. Hence no Fifth comes into play here unless its a 5th of Jack.
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