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In light of the long comment thread attached to yesterday's post on the Fifth Amendment, I thought I would do more research into the "foregone conclusion" exception to Fifth Amendment "act of production" privilege. I vaguely recall that there are a bunch of law review articles on it, but I figure google might have some good stuff, too. So I run a google search for "foregone conclusion" and "fifth amendment".

  What's the first hit for this topic on Google? Hmmm..
John (mail):
I repeat my Challenge of Ignorance:

What case says I don't have the right to shut up and go limp until conviction or acquittal?

I'm not trying to be too cute here, but I really don't know, and thought the right to avoid being a "witness against" myself meant I didn't have to talk to the authorities or do anything that might help them convict me. Not true?
12.15.2007 3:17pm
Sean M:
I know this will just re-spark the debate, but let me say, channeling Glenn Reynolds:

Heh.
12.15.2007 3:21pm
Curt Fischer:
I like it when the headlines are written in BASIC.

It raises the question, though: Should BASIC always be capitalized, or not, when discussing it with a lay audience?
12.15.2007 3:49pm
Public_Defender (mail):
If it were really a "foregone conclusion," the government wouldn't need the idiot's password to get information from his computer.
12.15.2007 3:51pm
OrinKerr:
John,

At that level of abstraction, no, that's not correct. See, e.g., Hiibel, Fisher, Doe II, the lineup cases, etc.
12.15.2007 3:56pm
whit:
"I'm not trying to be too cute here, but I really don't know, and thought the right to avoid being a "witness against" myself meant I didn't have to talk to the authorities or do anything that might help them convict me. Not true?"

for the umpteenth time... not true.

for example, handwriting examplars. you can be forced to provide a handwriting sample. why? because it's not TESTIMONIAL evidence, it's direct evidence - it's evidence of HOW you write, and given the requisite PC/Court orders, you can't refuse.

you can also be required to stand in a lineup (although these days photo arrays or consecutive photos are more common).

you can also be required to provide a voice sample for computer analysis.

etc. etc.

so, simply put. to answer your question. it's NOT true.

the issue in this case is - is this like being forced to turn over a key, etc. (which is not a 5th amendment issue) or not.

but the idea that you have no duty to do ANYTHING that might help the authorities convict you is demonstrably false, as the examples above show

and in brief - the reason is that the 5th is (correctly) interpreted to refer to giving testimony against oneself, but NOT interpreted in the way you believe
12.15.2007 4:05pm
Oren:

for example, handwriting examplars. you can be forced to provide a handwriting sample. why? because it's not TESTIMONIAL evidence, it's direct evidence - it's evidence of HOW you write, and given the requisite PC/Court orders, you can't refuse.


I know this is OT, but if I was required to give a handwriting example, I would just scribble. No one can contend that the scribble I just wrote isn't my handwriting, after all, I am the sole 'author' of what my handwriting is.
12.15.2007 4:09pm
Eugene Volokh (www):
Curt Fischer: It all depends on what the idiom is in standard English. The standard English sources that I've seen that refer to BASIC capitalize it, so that happens to be the standard English idiom as well as the Computerese one.

And of course, that makes sense, because we all know that BASIC is called BASIC just because that's the abbreviation for Beginner's All-purpose Symbolic Instruction Code, right?
12.15.2007 4:21pm
Computer Guy:
Prof. Volokh: Since we're on the topic of programming languages, what about this: Should we likewise call it PERL because many "standard English sources" do so and because it's an acronym for Pathologically Eclectic Rubbish Lister?
12.15.2007 4:50pm
whit:
"I'm not trying to be too cute here, but I really don't know, and thought the right to avoid being a "witness against" myself meant I didn't have to talk to the authorities or do anything that might help them convict me. Not true?"

oh, and the most obvious example i forgot. you cannot refuse to submit to fingerprinting when arrested.

does this help them convict you? in many cases, yes? if you are innocent, it might help you exonerate yourself as well. you can't refuse to be fingerprinted.

oh, and in many jurisdictions, you gotta give a DNA sample as well
12.15.2007 4:55pm
Oren:

oh, and the most obvious example i forgot. you cannot refuse to submit to fingerprinting when arrested.


You are likewise perfectly free to mutilate your fingerprints (before you are arrested of course). I know many doctors that offer anesthesia-related services for those interested (for legal reasons, you still have to do the deed yourself).


oh, and in many jurisdictions, you gotta give a DNA sample as well

That's usually a subpoena but the point is well taken.
12.15.2007 5:08pm
Eugene Volokh (www):
Computer Guy: Depends on who "we" are. Conventions among computer programmers may reasonably differ from those among nonprogrammer journalists who are writing about the subject for a nonprogrammer audience (though note that this set of journalists who write about Perl for the public is a very small set). Or they may be the same; I just don't know for Perl. The important thing is that computer people have no inherent obligation to follow journalists' conventions on this, and journalists have no inherent obligations to follow computer people's conventions.
12.15.2007 5:22pm
jim:

oh, and the most obvious example i forgot. you cannot refuse to submit to fingerprinting when arrested.


I think your previous examples - vocal and handwriting samples - were actually better at refuting John's challenge. After all you can be fingerprinted and have blood drawn while "shut[ing] up and go[ing] limp."
12.15.2007 5:30pm
Public_Defender (mail):
The reason I think that the defendant so obviously wins this issue is that other than identifying yourself and testifying under a grant of immunity, I haven't seen another example of a time when a person is compelled to provide information stored in their brain. Typing on a keypad under the sole control of the government v. speaking seems like a meaningless distinction.

Of course, the information is also in the computer, and the government has all it needs to keep the computer. They are free to try to get the information from there.

Unless you have a case law that says a person is required to provide a the combination for a safe that they haven't written anywhere, I don't see how the government wins this.

Maybe the government should try something more devious. Give him the computer (they already have a copy). Put it in his cell, and turn on a video and audio camera. There's a darned good chance that given enough time, the idiot would give in and look at what he had stored. Problem solved.
12.15.2007 6:33pm
Sean M:
I am confused, though, on one issue. As I understand it as a mere 1L, the subpoena power only extends to papers or tangible objects. As the subpoena says, it asks for any documents he has that indicates any passwords used in relation with the computer. Assuming he doesn't have it written down anywhere, how does the subpoena power extent to the act of him typing in the password?

Can't he just respond truthfully and say there is no document that is responsive to the request?
12.15.2007 10:45pm
jim:
So, I have a question that might be stupid, but:

Instead of trying to get the password in order to decrypt the files on the government's backup of Boucher's computer, can they just order him to present them with copies of every document on his computer? The key being that document would mean the unencrypted version.

I presume that when the Feds subpoena a company for all of it's e-mails they have to deliver unencrypted copies of the e-mails regardless of whether the company normally has them encrypted for the purpose of storage. Can law enforcement simply make an analogous request for all the documents on Boucher's computer, irrelavent to the encrypted copy they possess? Or is this one of those things that is different because corporations don't have the same rights against self-incrimination?

The gotcha here is that if Boucher has deleted the offending files already, such an order will yield nothing useful, as I presume the court can't order him to hand over all the files that once were on his computer.
12.16.2007 12:00am
Geof:
Here is the problem (from a practical standpoint) with a court compelling someone to divulge something stored in my brain: how do they know, with certainty, that it is there? I have a lot of passwords to a lot of systems, maybe I forgot it. This may mot be believable for this case, but as a general precedent, how can they authorities be certain if I say I forgot the password, wether I'm lying or not.

Alternatively, say I use Truecrypt: http://www.truecrypt.org/. Truecrypt supports a hidden volume within the encrypted volume, and that hidden volume is impossible to detect, since it is what the outer volume sees as freespace. If I give them the outer password, I technically haven't complied with the order, since they wanted the inner password, but they have no way of knowing that there is an inner password, other than suspicion. Would I be in contempt based on their suspicion?
12.16.2007 12:42am
whit:
"The gotcha here is that if Boucher has deleted the offending files already, such an order will yield nothing useful, as I presume the court can't order him to hand ver all the files that once were on his computer"

lol

are you kidding me? you do understand that when you "delete" a file, all you do is change the REFERENCE to it in the directory file? it doesn't actually ERASE the file.

the only way to do that is with a "purge" program.

amazingly enough, i can't tell you how many IDIOT criminals don't understand this and think some file is GONE just because they "deleted" it.

most computer nerds otoh own several wipe programs. i certainly do :)
12.16.2007 2:23am
jim:

you do understand that when you "delete" a file, all you do is change the REFERENCE to it in the directory file?



I understand that when you trash/recycle a file the bits still exist on a hard drive until they are overwritten by another file. (More downloading can serve the same function as a purge) But the government already has those bits and they are useless to it. Perhaps when you unlock a PGP encrypted drive the deleted files also become accessible. That would obviously work to the government's advantage. I do not know if this is how PGP works.
12.16.2007 4:52am
Tom952 (mail):

Put it in his cell, and turn on a video and audio camera. There's a darned good chance that given enough time, the idiot would give in and look at what he had stored.


Better - Install a key logging program on his computer before you give it back to him. The program will secretly record and store everything he types.
12.16.2007 12:16pm
Oren:

Better - Install a key logging program on his computer before you give it back to him. The program will secretly record and store everything he types.


If he's wised up from this at all he won't fall for that.
12.16.2007 12:40pm
whit:
tom - google "magnetic force microscopy"

i am aware that (at least one) researched considers this urban legend, but my computer forensics guy says it aint.

and he used to work for the feds. the feds are generally full of #$(#$( as a rule, but this guy is credible (and very good at his job).

personally, i'd want to overwrite at least as many times as is required by DOD level "wipe" programs.

there's a fine line between paranoia and caution. :)
12.16.2007 2:22pm
Public_Defender (mail):
If he's wised up from this at all he won't fall for that.

That's a big "if." Remember, this is the idiot who encrypted his porn, but then voluntarily let the cops see it anyway.
12.16.2007 3:17pm
whit:
and i;m sure Public_Defender knows... we generally catch the dumb/arrogant ones. not the smart ones.

fortunately, there's PLENTY of the former to keep us busy.
12.16.2007 6:17pm
Tom952 (mail):
whit:

I don't think it is urban legend that magnetic traces can be read. There are disk recovery services that do this as a service. With sufficient resources they could search for traces of deleted files to try to retrieve a piece of an image to use to convict him. For that matter, given adequate resources they could break his PGP. A child porn case may not be enough of a priority to warrant the required level of investigative resources.
12.17.2007 12:21pm