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Join the conversation! There are now 33 comments on this chapter's page 60. Samples vs. Self-Incrimination. What are your thoughts?
  1. Ned says

    That image of the state chick prying into that guy’s brain is disturbing.

  2. Harry says

    So is this why you can be compelled to give up an encryption key?

    • that is a grey area. you could be compelled to give up a file which has the encryption key, but if it is,say a password, or something you know but don’t have written down you cannot be compelled to give it over. what’s more you cannot be compelled to confirm the existence of an encryption key or even that the file in question is in fact encrypted.

      but a lot of times the answer of “can you be compelled to hand over an encryption key” comes down to “whatever the judge thinks”

      • Courts have lately been saying that if divulging your password or encryption key requires you to divulge the contents of your mind (which is probably the case most of the time), then it is testimonial and you can assert your Fifth Amendment privilege.

        However, they’re also saying that if the government already substantially knows what’s in the encrypted files, then there’s little self-incrimination in making you give them the password (for example, when they seized your computer while it was running and saw everything, but then on rebooting the drive was encrypted again).

        And even if they don’t know what’s in the files, but they do know what the files are and where they’re located, the courts are saying that the government can make you hand over unencrypted copies. In other words, you don’t give them the password, you just give them the readable pre-existing contents.

        • What’s to stop the government from just saying it knows (even if it doesn’t)? Would anything incriminating on the drive that wasn’t specific to their guess be protected?

          • You’ve gone to court to stop the government from making you give them your password. They have to give the court a factual basis to reach the conclusion that they already substantially know what’s behind that password, and that therefore giving them your password wouldn’t be giving them evidence they don’t already have, so it wouldn’t be incriminating.

            • If you’re not giving them evidence they don’t already have, then there’s no reason to give them the password. How does this make sense?

            • So, crazy idea time, could you just make your password literally be a statement that would actually incriminate you? So telling them your password literally would incriminate you!

              • Actually, think of this scenario:

                (a) The FBI has obtained a laptop that contains files of military secrets. It’s illegal for you to possess them.

                (b) The laptop is encrypted, but even so they know the files are there, and they know what’s on them.

                (c) What they don’t have is strong proof that you were the person in control of that laptop.

                (d) The government orders you to give them the password to the laptop.

                (e) Giving them that password will be giving them proof that you know it, and thus had control of the laptop. That might be the crucial bit of evidence they need to prove your possession.

                Would that be Fifth Amendment self-incrimination?

        • Perhaps I’m taking your use of the word “create” in the first panel too literally, but if all they have is an encrypted version of a document, decrypting it is creating a new piece of evidence. One certainly can’t see the two as being equivalent, or they wouldn’t need to ask you to decrypt it; they’re clearly distinct for the purposes of the court.

        • If the password itself reveals something about you, or the same password protects other documents that the government isn’t demanding, then forcing you to turn over the unencrypted documents rather than the password seems like a good way to protect that.

          However, good security practice says that your passwords should be essentially random and you should use a different password for each thing you want to protect. If you’ve followed that practice, then it seems to me like the critical bit ought to be whether or not the government can already prove that you KNOW the password.

          If there’s no doubt about whether you know the password, then it seems to me that giving the (meaningless) password to the court isn’t really testimonial–it doesn’t tell the court anything ABOUT YOU that it didn’t already know.

          On the other hand, if there’s a legitimate question as to whether you actually know the password, then they shouldn’t be able to compel you to turn over unencrypted versions of the documents, because you wouldn’t be able to turn over those documents unless you knew the password, so turning them over would effectively be testimony.

          (Our gracious host talks about the “Act of Production” in a comment below, saying that if the government doesn’t already know that a document is in your control, and producing it would confirm that, then producing it is testimonial and you can’t be forced to produce it–that seems exactly applicable here.)

          Does that seem like a valid analysis?

  3. rubix says

    Hey, this is a long shot, but do you know anything about Larry Farwell’s stuff with brain-computer interfaces being used in federal and state criminal proceedings+investigations?

    The guy is published and not really a crank, but he sure is bullish about using this to send people into and out of prison. Unfortunately, none of his papers I can find mention anything about ethics or consent, and certainly no legal analysis.

    What the technology hinges on is measuring scalp voltages (EEG) to detect whether or not a recognizable object or scene is already present in a subject’s memory. I think it would be very bad if the 5th Amendment did not apply.

    • I haven’t heard about him or his “brain fingerprinting” before. From reading the links you posted, it sounds like just another kind of lie-detector — he looks at an EEG to see if there’s brain activity when he talks about X, indicating familiarity with X. Perhaps useful in an exoneration to indicate lack of knowledge only the perpetrator would know, but hardly conclusive to prove guilt when there’s all kinds of ways people can learn of things.

      Actually, using brain scans as lie-detectors has been gaining traction as their quality has improved. Farwell’s EEG is a thing of the past — fMRI is what people are looking at these days. Even that’s still more of an art than a science, but who knows what the future holds. For stuff I wrote on fMRI as a lie detector, look here.

      As you read this, researchers are working on using fMRI to reconstruct what you’re seeing and thinking. See this Yale study from just last month. It’s not there yet, but in a decade or two?

      But getting back to the Fifth Amendment — what more direct way is there for the State to pry into the contents of your private mind than a brain scan that can tell what you’re thinking? One might argue that neural activity isn’t your words, so it’s not testimonial, but that’s a silly argument. Your words are the outward expression of that neural activity, which is the very thing the Fifth is trying to protect.

      • And really, hasn’t there been enough science fiction written about distopias where your private thoughts are not private anymore?

  4. Tualha says


    Earlier this month, a New Jersey judge ruled that the two most important witnesses — Bill Stepien, Governor Chris Christie’s former campaign manager, and Bridget Anne Kelly, Christie’s former deputy chief of staff — cannot be compelled to produce documents to the committee, because doing so could violate their Fifth Amendment right against self-incrimination.

    • since the next paragraph mentions 2 criminal investigations, this might be a case of getting out of the way so as not to screw those up.

      My best guess to the facts of the case would be that
      the state might not know if the requested documents exist. Saying they don’t exist could be perjury, so providing them would be an testimony that such things do exist.

    • Ah, the Act of Production rule was at play there. Sometimes the very act of producing a pre-existing document can count as “testimonial.” It’s rare, but it can happen.

      If the government doesn’t already know that documents exist, and the act of producing them would tell the government that they exist, then handing them over is testimonial.

      Similarly, if the government doesn’t already know that an item is within the subject’s control, and turning it over would confirm that fact, then that would also be testimonial.

      Likewise, if there’s an issue as to whether documents are authentic, and turning them over basically confirms that they’re authentic, then that’s testimonial too.

      All three of those issues seem to have been at play here, and the judge said the act of production would have been testimonial, and so the Fifth Amendment was properly asserted.

      There were tons of other issues as well — the 98-page ruling can be found here and is actually a pretty good read.

      • Interesting. As a public employee, I had to sign a release stating that all work I do on the college’s computer and/or network belong to the college. Thus, the college owns my emails. Could the government suponea the college for my materials (treating it like a corporation without rights) and thereby circumvent my 5th amendment rights?

        • That kind of release is more about your privacy rights than your self-incrimination rights. The purpose is usually to make it clear that everything stored on their hardware belongs to them, not to you, and that you understand that you have no expectation of privacy there. That would limit your ability to try and intervene to quash a subpoena directed to the organization demanding records possessed by the organization. It’s not really a Fifth Amendment issue.

  5. Prometheus says

    I don’t understand how forcing someone to hand over documents is any different from the court ordering you to hand over your marijuana. Is this simply a difference between corporations and individuals?

    Furthermore, what happens to evidence that is collected but excluded? For example, let’s say that the police knock on Billy’s door, and Billy foolishly invites them into his home. When they go over to his desk and are about to open the drawers, he tells them to stop and he doesn’t consent to a search of that desk, but they ignore him and take out a notebook with records of drug deals.

    They arrest Billy and take the notebook, which will (or should) be thrown out in court. But what happens then? Can they keep the notebook or copies or records of it to use as evidence for other cases? Can they use it as probable cause for a warrant to search one of his clients, and if they do, does it matter as long as the police think it’s a valid warrant? If they can’t keep it, does Billy get it back, or is it destroyed? Is anyone allowed to keep a physical record of Billy being involved in such dealings so that they can target him later for other offenses?

    Now let’s say Billy was in his car with some friends instead, and someone goofed and spooked the cops, so now they can search the passenger area. Are they allowed to open any containers that are PART of the car? Gloveboxes, small compartments in the dash, between the seats, etc.? Furthermore, if the vehicle doesn’t have a separate trunk (think SUV), is the storage area considered a passenger area? If so, what if nobody in the vehicle could have possibly reached it?

  6. Eric says

    The difference between “Tell us what you said to each other” and “Bring us documents so we can read for ourselves what you said to each other” seems like splitting hairs to me.

    • Not really. If the documents already exist, then rather than making you hand them over, the state could always come and get them itself. Demanding that you provide them for it is just saving time.
      It’s likely in your best interests too, since if they instead write a warrant for the cops to come and get your documents, then anything else they find while looking for them is kosher too.

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