It is a vocal statement, or something you are being asked to write down. Not something that preexisted.
EDIT: this may seem like a technicality, but it is an important one. My stance is that you should not be coerced in any way to help provide evidence. The rule of thumb is what is possible if you were dead (taking the key, thumbprint, and so on) versus what you actually need to provide from your memory.
My suspicion is that if you don’t provide a combination to unlock a safe in response to a subpoena, you could be found in contempt. (does anybody know the caselaw on this?) Yes, they can and will open the safe without your help, but it takes time, money and effort.
ETA Interesting… http://blogs.denverpost.com/crime/2012/01/05/why-criminals-should-always-use-combination-safes/3343/
Could be? I am always in contempt of court, that should be assumed from the outset.
my passphrase is fuckthepolicethreewordsalluppercase
My password is O01IlIO!10l@Ol01Ii.
…Come on, I’ve written it down for you and everything.
…No, that one’s a zero, and that one is an uppercase I.
Yes, that’s an ‘at’ sign. How can you mistake that for a capital O?
…Whoops, I didn’t make that dot at the bottom of the exclamation point clear enough. Let me emphasize it.
…Yes, my device wipes itself after five incorrect attempts. Why do you ask?
You can access a filing cabinet without speaking.
Responsible speech is my right, or it is not. No gray area there.
Now I wanted to get a large wrench and label it “The Compeller”.
I guess I have to agree on the finger print thing. It would be just like insisting on a hand writing sample or blood or DNA sample, or even finger printing when being booked.
I would have to disagree that you have to utter your pass code.
Though things like this I have some conflict - as on one hand it sets up the power for abuse, but on the other hand most of the time this sort of thing is used to go after people committing crimes, not political dissidents. I can concede the fingerprint protection, but not the pass code.
I dunno - if @beschizza is the yardstick, I would say they almost certainly wouldn’t be able to open my safe without the combination
I really like option one. I would do it (were I not so slothful) even with nothing but cat and family pictures on my phone, just to keep my fucking privacy.
Expect worse to come to pass.
That’s how it works in Canada. The government realized you can’t force a person to “remember”.
Fun tip, re: biometrics- you don’t have to use your thumb!
I use a different a print from a different part of my finger to unlock my device. Even if you had my hand, there are only five shots at guessing which part has the right print. I’ve even tested it with my nose print (which is unreliable and silly looking).
Two words: “nose grease”.
Genitals, I’ve read, also work. But that sounds pretty inconvenient unless you live and work at a nudist colony…
I say the entire concept of forced fingerprinting, blood sampling, breathalyzer and the lot are out of bounds. They are clearly methods to force a suspect to provide information which may incriminate them. Whatever legal fiction has been used to force people to act as witness against themselves should be overturned as not being within the power of this government. The distinction that DNA, fingerprints and the like are non-testimonial and are not of a communicative nature are suspect at best.
A witness, which you cannot be forced to become, is someone from who authority compels testimony relevant to an event or other matter. The 5th never says you can’t be forced to communicate, it says you cannot be forced to become a witness. Your blood, DNA, fingerprints, and indeed a passphrase are all things they can attempt to gather. However, the 5th is clear that you cannot be compelled to become a witness and provide any of those things.
IIRC, Truecrypt (the reliability of which I understand is now in doubt) offered a “hidden partition” feature: properly encrypted data should be indistinguishable from noise, so you could pass the hidden partition off as an uninitialised area of your disk.
My main counterargument is the same one I used above: can the evidence be gathered if you are dead? If so, then it is evidence, not testimony. Your fingerprints, DNA, and so on are not passcodes but identifiers. They are naturally occurring with enough variation to make them unique enough to use as ID, but they are not secret.
If something can be passively gathered, then it is evidence.
If it requires your active participation, then it is testimony.
A witness isn’t someone who provides secrets and testimony isn’t limited to what is a secret, what is public, what is known, and what it is not. Testimony can be answering the question “what is your name” which I can look up and verify even after you die . It can even be providing a list of things which your computer did which will exist if you are dead or alive. Yet, it is still testimony and if you gather that testimony from a witness (aka a person with information), then the 5th should still apply.
If the state wishes to passively gather that information, blood sample, computer file, or what have you, they are free to do so. They cannot however force you to provide any of that to you and legal finagling and trickery has no effect on the 5th amendment. The courts do not have the power or authority to negate the 5th or to subvert it. That power lay with the lawmaker.
No one said anything about witnesses. So I’m going to ignore that as a distraction.
Looking up your name is not testimony from you, it is evidence. You did not answer the question, the investigator got it form a different source. Everything you describe is evidence. It falls in the same category as footprints in the snow.
I repeat: only if you actively have to do something, then it is testimony.
That’s the problem… ignoring that distinction. The 5th says “nor shall be compelled in any criminal case to be a witness against himself” Witness is an important aspect of this discussion.
That’s my point. If you gather it without the help of the accused it is evidence. If the accused provides it, then it is testimony and the accused is acting as a witness to that fact.
Right, being compelled to actively provide your DNA, blood, fingerprints, or anything else is acting as a witness against yourself which is the government is specifically barred from doing. If they gather this from other sources, then the 5th does not come in to play. You can see the footprints I have made in the snow but you cannot compel me to make footprints for you to compare them with.
