Your computer files might be protected by more than just a password
By Alex Culpepper
One of the freedoms under the Fifth Amendment allows citizens to protect themselves from self-incrimination, and when the police slap the cuffs on and “read you your rights,” what they’re doing is honoring the amendment. It doesn’t end there, though, because anyone accused of a crime has no obligation to say or do anything to help build a case against him or herself all through the trial process. That’s what prosecutors are supposed to do – find evidence against them, like the gun used in a murder or the fingerprints on the door of the building that was burglarized. Some crimes, however, are committed with computers, and prosecutors need to dig through electronic files and hard drives to access information that might be evidence. The trouble for prosecutors is the potential evidence might be protected by a password, and sometimes the accused refuses to give it up, just as Harry Jacob III has done.
Until recently, Harry Jacob III was a municipal judge in a town near Cleveland, and he is standing trial against a host of charges including corruption and prostitution. What makes his computer so important is he allegedly used it while at work to find prostitutes and then undertook research to build a defense against the charges. Jacob has surrendered the computer and given the prosecution a login, but apparently some files are protected by an encrypted password. Prosecutors want this password because they hope to find more evidence to support the charges Jacob faces. Jacob and his legal counsel have refused to give up the password, and law experts say this is a tricky issue that could set precedents regarding the Internet and constitutional freedoms.
Supporters of Jacob’s position say giving up the password will violate his Fifth Amendment right against self-incrimination. They say giving up a password essentially forces the accused to admit to possession of incriminating evidence. Supporters claim it would be like ordering a suspected killer to reveal where he hid his gun. Searches of a computer could also reveal evidence of other possible crimes for which a person had not been accused. They further counter the search would be just one big fishing trip unless the prosecution has something very specific they need.
Jacob’s opponents say this is no different from asking someone to hand over a key to a safe filled with documents, which could be used as evidence. They also claim plenty of evidence of illegal activity has surfaced, and the computer search is warranted on those grounds. Opponents offer precedent as well because a federal ruling in Colorado in 2012 ordered a person accused of bank fraud to hand over an encrypted password.
The main issue with cases like this is laws were written long before people were using personal computers, and this may be just another example of technology outpacing the legal system. In the past, people had to deal with searches of their homes, cars or bags. Now, it’s computers, and Jacob’s supporters say passwords are a Fifth Amendment issue we all need to respect – but the other side says if evidence is known to exist, the password must be handed over.
Reach DCP forum moderator Alex Culpepper at AlexCulpepper@DaytonCityPaper.com
Commentary Forum Question of the Week:
An Ohio judge being prosecuted on corruption and prostitution charges refuses to surrender his encrypted computer password citing the Fifth Amendment. Does a court order to surrender a computer password violate the right against self-incrimination?
Commentary Left: Head case
By Ben Tomkins
Among the six counts of solicitation, a dereliction of duty charge stemming from some 4,500 images culled from the un-partitioned portion of his computer that reveal him trolling for poon at an online brothel called Studio 54 while he was actually presiding over cases – in Texas the judges just put their cowboy boots up on the bench and flirt with the stenographer – and three counts of promoting prostitution by engaging in the unbelievably gross behavior of pimping out the women he was already paying for sex and thereby willfully taking sloppy seconds from strangers, my favorite by far is the bribery charge purely because of the wording.
“The grand jurors, on their oaths, find that the Defendant(s) unlawfully did knowingly solicit or accept for himself or another person any valuable thing or valuable benefit, to wit: SEX…”
Maybe that’s funnier to me than it is to you, but I just love how the starched formality of erudite legal prose is bluntly traumatized by the ham-fisted interjection of an ugly fact.
Given all that, I think we can safely say it was an inevitability the phrase “I plead the Fifth” would, at some point, find its way onto the pages of a court transcript. What was not expected, however, was this would somehow find a way to distinguish itself among a far, far more entertaining compost heap of events.
There is a certain irony associated with the precedent upon which The Honorable Harry Jacob III is basing his Fifth Amendment assertion in that it was established in the lone dissenting opinion of Justice John Paul Stevens in the Supreme Court case John Doe, Petitioner v. United States.
The point in question was whether or not the police had a right to force a suspect to tell them the combination to a safe, which contained documents relevant to a case. Although he lost the argument, Justice Stevens made legal history by writing:
“[I]tems of physical evidence may be extracted from a defendant against his will. But can he be compelled to use his mind to assist the prosecution in convicting him of a crime? I think not. He may in some cases be forced to surrender a key to a strongbox containing incriminating documents, but I do not believe he can be compelled to reveal the combination to his wall safe – by word or deed.”
The point which resonates with the case of Harry Jacob III is the mind is the barrier erected by the Fifth Amendment. If the law allows the excising of facts from the mind of a suspect that would tend to incriminate him, you’ve basically opened the floodgates for torture. There is, of course, a difference between this and a court ordering someone to testify against another person, because that testimony doesn’t harm the individual being compelled. However, if authorities are given access to the mind of a defendant in that way, they are empowered not to punish or imprison them based on the material facts of a case, but for information it is impossible to prove they may or may not have in their head. That is what the Spanish Inquisition was all about, and it is precisely this kind of torture the Fifth Amendment was intended to prevent.
Besides, who can say if he actually remembers the password or not? Perhaps he took a swift blow to the head or had a mild stroke five seconds before the police got there. Who knows? Only Harry Jacob III. But imagine how impossible his predicament would be if he actually didn’t know the password, and was put in jail for contempt of court for the rest of his life. That’s something we simply cannot allow in a civilized society.
As much as I’d love to know what’s in that partitioned file because of the potential it has to make this case even funnier to me, I’m afraid it’s in the hands of the computer whizzes of the world to figure out. I hope they do. Harry Jacob III is a sick, sick individual who probably has at least fifteen more counts of “being a general asshole” stored in there. However, until we invent a mind-reading device, I’m afraid he has the right to keep that password locked away.
Reach DCP freelance writer Ben Tomkins at BenTomkins@DaytonCityPaper.com
Commentary Right: Taking the Fifth on your passwords
By Rob Scott
“I plead the Fifth!” “I exercise my Fifth Amendment right to not incriminate myself.” Common phrases heard.
Most do not truly understand the legal implications of the right, nor fully know the breadth of the constitutional right. The Fifth Amendment states:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
The right against self-incrimination, as described by the Fifth Amendment, is probably the best known of all constitutional rights, as it appears frequently on television and in movies – whether in dramatic courtroom scenes (“I take the Fifth!”) or before the police question someone in their custody (“You have the right to remain silent. Anything you do say can be used against you in a court of law.”)
The right protects a person from being forced to reveal to the police, prosecutor, judge or jury any information that might subject him or her to criminal prosecution. Even if a person is guilty of a crime, the Fifth Amendment demands the prosecutors come up with other evidence to prove their case. If police violate the Fifth Amendment by forcing a suspect to confess, a court may suppress the confession – that is, prohibit it from being used as evidence at trial.
The right to remain silent also means a defendant has the right not to take the witness stand at all during his or her trial, and the prosecutor cannot point to the defendant’s silence as evidence of guilt. There are, however, limitations on the right against self-incrimination. For example, it applies only to testimonial acts, such as speaking, nodding or writing. Other personal information that might be incriminating, like blood or hair samples, DNA or fingerprints, may be used as evidence. Similarly, incriminating statements that an individual makes voluntarily – such as when a suspect confesses to a friend or writes in a personal diary – are not protected.
The U.S. Supreme Court has ruled the privilege applies whether the witness is in a federal court or – under the incorporation doctrine of the Fourteenth Amendment – in a state court, and whether the proceeding itself is criminal or civil.
In Bedford Heights, Ohio, which is near Cleveland, Municipal Court Judge Harry Jacob III is accused of prostitution, corruption and bribery. The prosecutors on the case want him to provide a password so they can access his personal computer to search for evidence. He has refused on the grounds of self-incrimination, per the Fifth Amendment.
However, the U.S. Supreme Court and the Ohio Supreme Court have not yet specifically ruled on whether a defendant has a Fifth Amendment right not to disclose their computer passwords.
Other courts have given conflicting decisions on whether forced disclosure of computer passwords is a violation of the Fifth Amendment. A Denver, Colo. federal judge in January 2012, ruled a bank fraud suspect was required to give an unencrypted copy of a laptop hard drive to prosecutors. However, in February 2012 the Eleventh Circuit ruled otherwise – finding requiring a defendant to produce an encrypted drive’s password would violate the Constitution. This became the first federal circuit court to rule on the issue. A year ago, a Wisconsin District Court magistrate judge refused to compel a suspect to provide the encryption password to his hard drive after FBI agents had unsuccessfully spent months trying to decrypt the data.
A U.S. District Court of Vermont in 2009 ruled the Fifth Amendment might protect a defendant from having to reveal an encrypted password, or even the existence of one, if the production of that password could be deemed a self-incriminating act under the Fifth Amendment. In the case, In Re Boucher, the production of the unencrypted drive was deemed not to be a self-incriminating act, as the government already had sufficient evidence to tie the encrypted data to the defendant.
In the Bedford Heights case, the prosecution admittedly has enough evidence already without the need to access the judge’s personal computer. Also, the prosecution admits demanding the judge to provide his password to his personal computer is unsettled law in Ohio.
Again, like in most cases, law enforcement possibly has other alternatives to get the information from the judge’s computer through the warrant process or just hiring a computer expert to crack the password.
Ultimately, I would predict the Ohio courts would agree with the federal court in Vermont. By providing his password, Jacob could open himself up to additional incriminating evidence against him, thus giving rise to Fifth Amendment protection concerns. Also, Ohio courts definitely would consider there are other options in order to get additional evidence with Fifth Amendment violations.
Rob Scott is a general practice attorney at Oldham & Deitering, LLC. Scott is a Kettering City Councilman and founder of the Dayton Tea Party. He can be contacted at firstname.lastname@example.org or www. gemcitylaw.com.