DIGITAL SELF INCRIMINATION
So, let’s say you’ve been arrested, and you’ve been told by the cops (or the assistant district attorney, or whomever) that you have to decrypt the hard drive of your laptop, which law enforcement has been unable to hack. Let’s also say that you know that the material on said hard drive will not be….um…helpful to your legal situation (not that any of you would ever find yourself in such a nasty dilemma; we’re speaking hypothetically here). Anyway, would you have to do it—legally speaking?
Or does that fall in the category of self incrimination, thus you cannot be made to do the decrypting?
On Thursday, the 11th Circuit Court of Appeals, located in Atlanta, GA, said nope. You cannot be forced into digitally confessing your sins.
Joe Palazzolo of the Wall Street Journal has more.
In a ruling that could have broad ramifications for law enforcement, a federal appeals court has ruled that a man under investigation for child pornography isn’t required to unlock his computer hard drives for the federal government, because that act would amount to the man offering testimony against himself.
The ruling Thursday appears to be the first by a federal appeals court to find that a person can’t be forced to turn over encyption codes or passwords in a criminal investigation, in light of the Fifth Amendment, which holds that no one “shall be compelled in any criminal case to be a witness against himself.”
The Atlanta-based U.S. Court of Appeals of the 11th Circuit ruled that “the Fifth Amendment protects [the man’s] refusal to decrypt and produce the contents of the media devices,” which the government believes contain child pornography.
The ruling could handcuff federal investigators, as more data are secured behind sophisticated encryption software. A Justice Department spokeswoman did not immediately respond to a request for comment.
SHERIFF BACA JOINS CHIEF BECK IN SAYING YES TO LICENSES FOR ILLEGAL IMMIGRANTS
Robert Faturechi, Joel Rubin and Paloma Esquivel report for the LA Times:
Los Angeles County Sheriff Lee Baca said he supports the idea of allowing illegal immigrants to have driver’s licenses as long as they have been in the United States for a number of years without committing other crimes.
Baca’s comments Thursday come as Los Angeles Police Chief Charlie Beck has also expressed support for driver’s license for illegal immigrants.
Baca said such licenses should only be issued after illegal immigrants fill out comprehensive applications, similar to those for citizenship. The sheriff also said the licenses should be up for renewal annually, and be noticeably different than those issued to citizens.
“There’s enough potential for Chief Beck’s idea for it to be explored,” Baca said Thursday.
The sheriff has expressed openness to illegal immigrants being issued driver’s licenses before. In 2002, he supported a proposal to allow the licenses, but to imprint them with a special marker such as the letter “I” for immigrant so police could determine immediately if they were dealing with someone in the country illegally.
At the time, the sheriff was the head of a task force helping then-Gov. Gray Davis craft a plan to allow certain unlawful immigrants to get licenses, a proposal that eventually was scuttled.
Baca emphasized then that many illegal immigrants were already driving without having passed a driver’s test or buying auto insurance.
“At some point in time, we will allow illegal immigrants to have a driver’s license as long as they are trustworthy and non-criminal people,” Baca said at the time.
Good for the Sheriff. Now if the state legislature would just show some common sense and understand that this is less about immigration policy, than it is about public safety.
The Times editorial board put it well when it wrote:
….critics will argue that granting driver’s licenses to undocumented immigrants condones their presence in this country and makes it easier for them to stay. That makes sense in theory but not in practice. The reality is that undocumented immigrants are already here, and they are already driving to jobs taking care of children, mowing lawns and working in factories, among other things. Doesn’t it make sense to ensure that every driver, regardless of immigration status, is trained, capable and insured?
As Beck wisely points out, California’s push to keep undocumented immigrants from obtaining driver’s licenses hasn’t reduced the problems on the road
SCOTUS APPEARS TO BE HEADED TOWARD AFFIRMING THE STOLEN VALOR LAW
The New York Times’ Adam Liptak has a good summary of what went on in the court when the Supremes heard the Stolen Valor case. Here’s a clip (that includes in back story, in case you’re not up to speed:
Over the course of an hourlong argument on Wednesday, the Supreme Court seemed gradually to accept that it might be able to uphold a federal law that makes it a crime to lie about military honors, notwithstanding the First Amendment’s free speech guarantees. The justices were aided by suggestions from the government about how to limit the scope of a possible ruling in its favor and by significant concessions from a lawyer for the defendant.
The case arose from a lie told in 2007 at a public meeting by Xavier Alvarez, an elected member of the board of directors of a water district in Southern California.
“I’m a retired Marine of 25 years,” he said. “I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy.”
That was all false, and Mr. Alvarez was prosecuted under a 2005 law, the Stolen Valor Act, which makes it a crime to say falsely that one has “been awarded any decoration or medal authorized by Congress for the armed forces of the United States.” Mr. Alvarez argued that his remarks were protected by the First Amendment.
But for the personality of the SCOTUS discussion go to the report from Slate’s Dalia Lithwick, in which she details the kinds of lies that worry each of the justices.
Here’s a clip:
Most interesting to me is what judges think people lie about. So, for instance, amid the flurry of opinions written as the 9th Circuit tried to decide whether to review the Stolen Valor decision as a full court came this gem from Judge Alex Kozinski:
So what, exactly, does the dissenters’ ever-truthful utopia look like? In a word: terrifying. If false factual statements are unprotected, then the government can prosecute not only the man who tells tall tales of winning the Congressional Medal of Honor, but also the JDater who falsely claims he’s Jewish or the dentist who assures you it won’t hurt a bit. Phrases such as “I’m working late tonight, hunny [sic],” “I got stuck in traffic” and “I didn’t inhale” could all be made into crimes.
In so doing, Judge Kozinski launched a weird little judicial Rorschach test one might call Lies Federal Judges Worry About. Entries fly fast and furious this morning.