more on Can you be compelled to give a password? [was: Police Blotter: Laptop border searches OK'd]

[David Farber <dave () farber net>]

Begin forwarded message:

From: Andrew Grosso <Agrosso () acm org>
Date: July 30, 2006 4:58:41 PM EDT
To: dave () farber net
Subject: Re: [IP] Can you be compelled to give a password? [was:  
Police Blotter: Laptop border searches OK'd]

As a former Assistant U.S. Attorney, allow me to comment.

Information may be obtained by the government from a person in one of  
four ways:  (1) it is voluntarily provided; (2) by regulation in a  
heavily regulated industry; (3) by subpoena; and (4) by a search and  
seizure warrant.   We are concerned with number 3, the subpoena.

A person can refuse to produce incriminating information in response  
to a subpoena under the Fifth Amendment. Please note that the  
password is not protected.   If it is written down somewhere, the  
document on which it is written is not protected by the privilege.   
The *act* of producing the document or the password itself *may* be  
privileged, if such an act is itself incriminating.  For example, if  
the password was used in a crime, and the fact that you have the  
password in your possession tends to show that you participated or  
conspired in the crime, and then the Fifth Amendment privilege is  
applicable to protect you from implicating yourself in the crime.   
The Government *can* immunize you to the limited extent necessary to  
obtain the password - it cannot then use the fact that it got the  
password from you in order to prosecute you.  This is known as "Doe"  
immunity, and there is an extensive line of cases that has developed  
in this area.  Webster Hubbell, the former Associate Attorney General  
who was convicted of tax fraud by Ken Starr's IC Office, eventually  
had his conviction vacated because Starr's legal team failed to  
follow the rules when they obtained, from him (by subpoena), his tax  
records.

If the government is not investigating a crime, then it may use an  
administrative or civil subpoena to try and get the password.  If the  
witness invokes the Fifth Amendment, then the government can immunize  
that person and compel production.

The second point, above, concerning a regulated industry, applies to  
such areas as Medicare and Medicaid, Government contractors for  
procurement matters, industrial health and safety mattes,  
environmental concerns, etc.  The same analysis as above would apply.

Border searches are a different animal, since the government has the  
right to inspect items crossing the border without a warrant.   
However, if the password is in the traveler's head, then that is not  
an "item" that can be inspected at the border.  The information on  
the laptop might very well be such an item, however, and if the only  
way to convince the government to allow you to cross the border is to  
show the border guards what is on the laptop, then the traveler might  
very well face the choice of turning on the laptop and opening  
files,, using the password, or not crossing the border.  I do not  
believe that, even here, the traveler would have to produce the  
password itself.


Andrew Grosso, Esq.
Andrew Grosso & Associates
1250 Connecticut Avenue, NW, Suite 200
Washington, D.C. 20036
(202) 261-3593
Email: Agrosso () acm org
Web Site: www.GrossoLaw.com
----- Original Message -----
From: David Farber
To: ip () v2 listbox com
Sent: Friday, July 28, 2006 2:26 PM
Subject: [IP] Can you be compelled to give a password? [was: Police  
Blotter: Laptop border searches OK'd]



Begin forwarded message:

From: "Patrick W. Gilmore" <patrick () ianai net>
Date: July 28, 2006 2:11:45 PM EDT
To: dave () farber net
Cc: "Patrick W. Gilmore" <patrick () ianai net>
Subject: Can you be compelled to give a password? [was: Police
Blotter: Laptop border searches OK'd]

On Jul 28, 2006, at 1:32 PM, David Farber wrote:

> I don't believe it is a crime in any US Federal or State law, or in
> Canadian law, to set passwords and use encryption.  In the US, I
> believe that a warrant would be necessary for law enforcement to
> ask for your password, but I don't know if you have to comply.   
IANAL.

That is a good question - Can you be compelled to give up a
password?  Would you mind posting it to IP, I am interested in the
answer.

Seems there might be some 'self-incriminatory' arguments here.
Perhaps even an "unreasonable search" argument.  But IANAL.

--
TTFN,
patrick


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