the fifth amendment happy parody project song for connections
I just put this up here for a project.
By: Kate Van Horn
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the fifth amendment happy parody project song for connections - Video
Is taking the fifth amendment a bad idea?
By: Jeffrey Weiner
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Is taking the fifth amendment a bad idea? - Video
Last week, there was a lot of press coverage about a Virginia court ruling on how the Fifth Amendment applies to bypassing a smart phone passcode. The ruling hasnt been available before today, but here it is: Commonwealth v. Baust, via Marcia Hofmann. Its a short opinion, just five pages, so its a quick read. Unfortunately, though, the opinion doesnt address the really important issue raised by compelled decryption: Whether the government can force the defendant to enter in the passcode. Its not the courts fault that the opinion didnt reach that, to be clear. The government never asked for an order compelling the defendant to do that, so the court didnt decide it. Heres a quick rundown of the facts, the law, and my reaction.
The defendant has been charged with assaulting a woman. There is reason to believe that the defendant videotaped the assault and that there is a copy of the video on the defendants passcode-protected smart phone. The state wants the defendant to be ordered either to disclose his passcode so the police can enter in the passcode to unlock the phone themselves, or else to give up his fingerprint to unlock the phone directly using the phones fingerprint sensor.
The court reaches a split ruling. First, there is no Fifth Amendment problem with forcing the defendant to provide his fingerprint. Second, the defendant cannot be forced to tell the government his passcode because that would be forcing the defendant to disclose the contents of his own mind. Most importantly, the court rules that the foregone conclusion doctrine doesnt apply because the police dont know the passcode:
Contrary to the Commonwealths assertion, the password is not a foregone conclusion because it is not known outside of Defendants mind. Unlike a document or tangible thing, such as an unencrypted copy of the footage itself, if the password was a foregone conclusion, the Commonwealth would not need to compel Defendant to produce it because they would already know it.
In dicta, the Court adds that the defendant could not be compelled to hand over a decrypted version of the video believed to be on his phone. Thats true because it is not a foregone conclusion that the video exists or is on the phone. The defendant cant be forced to effectively testify as to that by producing a decrypted version of the video.
This is just a state court trial ruling, not an appellate decision. So its interesting more for its reasoning than its precedential value. With that said, here are some thoughts on the reasoning of the case.
First, the courts ruling on divulging a fingerprint is easy. Theres obviously no Fifth Amendment problem with that. On the governments request for the passcode, the opinion is frustrating because the governments request was poorly framed. In this case, the government doesnt need to know the defendants passcode. It only needs to bypass the passcode gate, either through the fingerprint or by having the passcode entered in by the defendant. If the government couldnt get into the phone with the fingerprint, then, the sensible request would be for an order to have the defendant enter in the code rather than an order disclosing it to the government. But the government didnt ask for that: Instead it asked for an order that the defendant tell them his passcode.
Whats the difference? Having the defendant enter in his passcode would minimize the Fifth Amendment implications of the compelled compliance, as it would not involve disclosing the potentially incriminating evidence of the passcode itself. The passcode itself could be independently incriminating, at least in some cases. Imagine a conspiracy case in which members of the conspiracy use a common passcode. Proof that a suspect used that exact passcode on his own phone would be incriminating evidence, as it could help to show membership in the conspiracy.
Because the passcode itself could be incriminating, the smart way to limit the Fifth Amendment problem is for the government to ask for an order compelling the target to enter in the passcode rather than to divulge it to the police. That way, the government gets the unlocked phone but never gets the passcode. If the defendant has to enter in the passcode rather than tell it to the police, the testimonial aspect of complying would only be admitting knowledge of the passcode, which would very likely be a foregone conclusion in a case where the phone is used heavily by that person. But the government didnt ask for that here, so the court didnt consider how the Fifth Amendment would apply in such circumstances.
Notably, the court does address in dicta whether it would be incriminating for the defendant to hand over the unencrypted video believed to be on the phone. But forcing the defendant to hand over the unencrypted video is quite different from having him enter in the passcode to unlock the phone. Being forced to enter in the passcode to unlock the phone amounts to being forced to say, I know the passcode for this phone. On the other hand, as the court recognized, being forced to produce the unencrypted video amounts to being forced to say much more, such as I admit that the video exists; I admit that this is the video; I know where that video is; and I admit that I know what video youre talking about. Being forced to produce the video raises a host of Fifth Amendment issues that merely entering in the passcode does not.
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Virginia state trial court ruling on the Fifth Amendment ...
Even if youve never studied law or sat for a bar exam, you likely have heard the phrase pleading the Fifth. Its become part of our national lexicon, so most Americans know they have the right not to answer police questions both while in custody or in court. The right against self-incrimination is spelled out in the Fifth Amendment to the U.S. Constitution and also extends to state and local jurisdictions. When someone exercises this right, we often say that they plead the Fifth.
The Constitution grants this right quite simply: [No person]shall be compelled in any criminal case to be a witness against himself However, as with most other constitutional rights, it is subject to interpretation by the courts and often inspires fierce debate.
This article focuses on the self-incrimination clause of the Fifth Amendment in legal proceedings. For details about your right to remain silent while in police custody, check out FindLaws Miranda Rights section. See Double Jeopardy; How Does a Grand Jury Work?; and The Appeal, Writ, and Habeas Corpus Petition Process to learn about other provisions of the Fifth Amendment.
The right against self-incrimination is rooted in the Puritans refusal to cooperate with interrogators in 17th century England. They often were coerced or tortured into confessing their religious affiliation and were considered guilty if they remained silent. English law granted its citizens the right against self-incrimination in the mid-1600s, when a revolution established greater parliamentary power.
Puritans who fled religious persecution brought this idea with them to America, where it would eventually become codified in the Bill of Rights. Today, courts have found the right against self-incrimination to include testimonial or communicative evidence at police interrogations and legal proceedings.
At trial, the Fifth Amendment gives a criminal defendant the right not to testify. This means that the prosecutor, the judge, and even the defendants own lawyer cannot force the defendant to take the witness stand against his or her will. However, a defendant who does choose to testify cannot choose to answer some questions but not others. Once the defendant takes the witness stand, this particular Fifth Amendment right is considered waived throughout the trial.
When a defendant pleads the Fifth, jurors are not permitted to take the refusal to testify into consideration when deciding whether a defendant is guilty. In the 2001 case Ohio v. Reiner, the U.S. Supreme Court held that a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The [Fifth Amendment right against self-incrimination] serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances. This case beefed up an earlier ruling that prosecutors cant ask a jury to draw an inference of guilt from a defendants refusal to testify in his own defense.
Defendants may assert their Fifth Amendment rights during civil trials, too, if testimony would open them up to criminal charges. But they do not enjoy the same protections against jury bias with respect to liability. This means that ajury is free to make inferences when a defendant chooses not to testify in a civil trial for fear of self-incrimination. Civil defendants often claim ignorance (I dont recall) instead of pleading the Fifth in such situations.
At a criminal trial, it is not only the defendant who enjoys the Fifth Amendment right not to testify. Witnesses who are called to the witness stand can refuse to answer certain questions if answering would implicate them in any type of criminal activity (not limited to the case being tried). Witnesses (as well as defendants) in organized crime trials often plead the Fifth, for instance.
But unlike defendants, witnesses who assert this right may do so selectively and do not waive their rights the moment they begin answering questions. Also, unlike defendants, witnesses may be forced by law to testify (typically by subpoena).
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Fifth Amendment Right Against Self-Incrimination - FindLaw
IT Security TV Show 4 November 2014 - iPhone Users Forfeit Fifth Amendment
http://www.secpoint.com/news IT Security News show 4th November 2014 Many Security Topics covered Pirate Bay founder Gottfrid Svartholm Found Guilty in Hacki...
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IT Security TV Show 4 November 2014 - iPhone Users Forfeit Fifth Amendment - Video