> No person shall...be compelled in any criminal case to be a witness against himself
Courts have previously upheld passwords as self-implicating information, which you cannot be constitutionally compelled to provide.
> in In re Boucher (2009), the US District Court of Vermont ruled that the Fifth Amendment might protect a defendant from having to reveal an encryption password, or even the existence of one, if the production of that password could be deemed a self-incriminating "act" under the Fifth Amendment.
Boucher ended up having to unlock the hard drive, because he had previously unlocked the drive for border agents. Had he refused, the court likely would have held that he could not be compelled to produce the password or the hard drive contents.
A warrant gives law enforcement the right to gather evidence, but doesn't compel you to provide it. If you won't provide it, they are authorized to take it by force. In the case of encryption, they don't have enough (legal) force to take it. Therefore, they are entirely dependent on the accused cooperating to gather that information, but the accused cannot be compelled to cooperate under the Fifth. This is scary for them, because it means that they can't legally compel you to give up the information, and they can't gain access to it by force. A wholly uncooperative defendant is effectively unassailable.
Boucher ended up having to unlock the hard drive, because he had previously unlocked the drive for border agents. Had he refused, the court likely would have held that he could not be compelled to produce the password or the hard drive contents
So it sounds like the actual legal question here, of whether the government can compel you to hand over your password in the general case, has never actually been tested?
IANAL, so I'm unqualified to say, but the way I read the ruling was that they decided that you can't be compelled to hand over your password, but because Boucher had already unlocked the drive for law enforcement once, doing so again would not further incriminate him. So, they forced him to unlock the hard drive without disclosing the password.
As I understand it, if he had initially refused to unlock the drive, then he couldn't have been compelled to unlock it again, under grounds that it could be self-incrimination.
> No person shall...be compelled in any criminal case to be a witness against himself
Courts have previously upheld passwords as self-implicating information, which you cannot be constitutionally compelled to provide.
> in In re Boucher (2009), the US District Court of Vermont ruled that the Fifth Amendment might protect a defendant from having to reveal an encryption password, or even the existence of one, if the production of that password could be deemed a self-incriminating "act" under the Fifth Amendment.
http://en.wikipedia.org/wiki/In_re_Boucher
Boucher ended up having to unlock the hard drive, because he had previously unlocked the drive for border agents. Had he refused, the court likely would have held that he could not be compelled to produce the password or the hard drive contents.
A warrant gives law enforcement the right to gather evidence, but doesn't compel you to provide it. If you won't provide it, they are authorized to take it by force. In the case of encryption, they don't have enough (legal) force to take it. Therefore, they are entirely dependent on the accused cooperating to gather that information, but the accused cannot be compelled to cooperate under the Fifth. This is scary for them, because it means that they can't legally compel you to give up the information, and they can't gain access to it by force. A wholly uncooperative defendant is effectively unassailable.