Porn, passwords and rights in the Internet age

[Keevan_Colton]

Bullshit, it's a direct question that would be against his interests to answer. He would be bearing witness against himself, similar to if he were to be asked where some bodies were buried, rather than if he killed the people...it would still be something he could refuse to answer. There's that wonderful notion of the right to remain silent.

[Keevan_Colton]

To put it another way, it is not up to the defendant to aid the prosecution in any way.

[Kamakazie Sith]

Retard, could the answer to "what is the password?" be used to convict him?

No. He's not being charged with having a password protected computer.

He's being charged with possession of child pornography that police already know is on the computer.

It's not like they're asking for his password so they can check to see if he has child pornography on his computer. They already know its there, and thus he can't self incriminate because the evidence has already been secreted.

[bilateralrope]

Is there some reason why the prosecutors can't just take the testimony from the guy who saw the files, then tell the jury that they guy is refusing tell them the password ?

I'm expecting that any jury will assume that he has something illegal there because otherwise he would clear his name by simply revealing the password.

[aerius]

Yup. You don't have constitutional rights at border crossings and airport customs areas since technically, you're not in the country yet.

Question: Do we then have jurisdiction to arrest them and charge them under our legal system? If they are not, for example, technically in the country yet then at least if we were being consistent the worst we could do is refuse entry and let the canadians deal with them. Just a question because IIRC you do or have worked in customs and would know better than I

Of course we do. If for instance we caught you trying to smuggle drugs through Customs, we confiscate the drugs and charge you with trafficking illegal narcotics. Same thing with illegal porn, we find it, we charge you. The only real difficulty at times is figuring out which country gets dibs on prosecuting the suspect. If a guy had filmed a bunch of child porn in the US and was caught trying to smuggle it into Canada, Customs & law enforcement agents on both sides will have to sort out who gets to prosecute him for what.

[Keevan_Colton]

Retard, could the answer to "what is the password?" be used to convict him?

No. He's not being charged with having a password protected computer.

He's being charged with possession of child pornography that police already know is on the computer.

It's not like they're asking for his password so they can check to see if he has child pornography on his computer. They already know its there, and thus he can't self incriminate because the evidence has already been secreted.

If it has then he doesnt have to do anything...

[Beowulf]

Is there some reason why the prosecutors can't just take the testimony from the guy who saw the files, then tell the jury that they guy is refusing tell them the password ?

I'm expecting that any jury will assume that he has something illegal there because otherwise he would clear his name by simply revealing the password.

You can't prove beyond a reasonable doubt that way. Such a conviction would be sure to be overturned, if the judge even allowed that line of argument.

[Keevan_Colton]

The distinction is taking an active part in securing evidence for the prosecution. They had it, guess they shouldnt have closed the computer down...


Besides, I wouldnt be suprised if it is hentai from the wording of the article and it's just the US bullshit about cartoons of children being child pornography...despite no actual children being involved...

I wonder if they'll be arresting anyone who goes "Who's your daddy?" in the future using the same logic. The article is clear about the images that got him arrested initially and read his rights were animated.

[Kamakazie Sith]

If it has then he doesnt have to do anything...

Legally he does. However, he won't. He could potentially be charged with interfering with an investigation, but that's a hell of a lot better than being convicted of possession of child porn.

Then again considering that the judge was on his side in this matter he might not even be charged with that. This is a bad ruling that could potentially have serious consequences.

[Keevan_Colton]

If it has then he doesnt have to do anything...

Legally he does. However, he won't. He could potentially be charged with interfering with an investigation, but that's a hell of a lot better than being convicted of possession of child porn.

Then again considering that the judge was on his side in this matter he might not even be charged with that. This is a bad ruling that could potentially have serious consequences.

Bullshit, at the end of the day the spirit of it is that you do not have to actively HELP the prosecution. Passively doing NOTHING...there is that bit about the right to remain silent after all...the Police have the right with judicial approval to break open locks and search things if you refuse to help, but the issue here is they are incapable of doing it without help...sucks to be them.

[Flagg]

Retard, could the answer to "what is the password?" be used to convict him?

No. He's not being charged with having a password protected computer.

He's being charged with possession of child pornography that police already know is on the computer.

It's not like they're asking for his password so they can check to see if he has child pornography on his computer. They already know its there, and thus he can't self incriminate because the evidence has already been secreted.

No, he's being charged with possession of child pornography, which they cannot prove because he refuses to divulge the password which is within his rights so as not to incriminate himself.

[Ritterin Sophia]

If the guy has child porn and has it knowingly and looks at it, he is a horrible horrible person who needs to be beaten to a bloody pulp (though if it was animated child porn... look on the bright side, it was not live action child porn *shiver*) however that has has no bearing on the legality of the search.

I believe lolicon is illegal. Or so Wikipedia says.

[Keevan_Colton]

If the guy has child porn and has it knowingly and looks at it, he is a horrible horrible person who needs to be beaten to a bloody pulp (though if it was animated child porn... look on the bright side, it was not live action child porn *shiver*) however that has has no bearing on the legality of the search.

I believe lolicon is illegal. Or so Wikipedia says.

Yep, it is.

[Kamakazie Sith]

Bullshit, at the end of the day the spirit of it is that you do not have to actively HELP the prosecution. Passively doing NOTHING...there is that bit about the right to remain silent after all...the Police have the right with judicial approval to break open locks and search things if you refuse to help, but the issue here is they are incapable of doing it without help...sucks to be them.

He's not actively helping them gain access to anything they haven't already uncovered. The evidence is already out in the open, and at this point he is just interfering with an investigation. The fifth amendment does not give you that right.

Things would be different if they hadn't already seen the images on his computer.

[Keevan_Colton]

Bullshit, at the end of the day the spirit of it is that you do not have to actively HELP the prosecution. Passively doing NOTHING...there is that bit about the right to remain silent after all...the Police have the right with judicial approval to break open locks and search things if you refuse to help, but the issue here is they are incapable of doing it without help...sucks to be them.

He's not actively helping them gain access to anything they haven't already uncovered. The evidence is already out in the open, and at this point he is just interfering with an investigation. The fifth amendment does not give you that right.

Things would be different if they hadn't already seen the images on his computer.

Allegedly seen.

If they have the evidence they dont need his help...since they need his help...then they clearly dont have the evidence really...

Swings and roundabouts my good man, swings and roundabouts.

[Kamakazie Sith]

Allegedly seen.

True. That federal agent really fucked up by not seizing the evidence from the laptop so now all the courts have is his word.

If they have the evidence they dont need his help...since they need his help...then they clearly dont have the evidence really...

Swings and roundabouts my good man, swings and roundabouts.

Indeed.

[Darth Wong]

To put it another way, it is not up to the defendant to aid the prosecution in any way.

Wrong. If it were a physical piece of evidence, he would be compelled to turn it over and you would have no argument against it. You are simply confusing the password with a self-incriminating statement just because they're both word-based. If it was the combination to an impenetrable safe containing physical evidence, would you still make this "right to stay silent" argument?

[Nova Andromeda]

If the guy has child porn and has it knowingly and looks at it, he is a horrible horrible person who needs to be beaten to a bloody pulp (though if it was animated child porn... look on the bright side, it was not live action child porn *shiver*) however that has has no bearing on the legality of the search.

I believe lolicon is illegal. Or so Wikipedia says.

Yep, it is.

-Perhaps some of the confusion about the law is due to people in this thread living in different countries?

-So it appears that the idiot in question may have been arrested for virtual child porn? It also sounds like they found real pedo stuff later, but that is no longer accessable.

-Even if the state can't get the real pedo evidence, what about convicting on the virtual pedo stuff? It seems to me they are out of luck there too. I just read the wikipedia article and it sounded to me like it is currently legal in the U.S. (or at a minimum it is unclear):

The Supreme Court of the United States decided in 2002, and affirmed in 2004, that previous prohibition of simulated child pornography under the Child Pornography Prevention Act of 1996 was unconstitutional.[46] The majority ruling stated that "the CPPA prohibits speech that records no crime and creates no victims by its production. Virtual child pornography is not 'intrinsically related' to the sexual abuse of children."

The last part says that another law used to convict someone with virtual child porn was overturned by the appeals court and will be on the SCOTUS docket for 2007-2008. However, given their previous 2 rullings it seems like the law will remain unconstitutional....

So is there anyone here that knows law and can clear this up for us? Have I missed something obvious?

[Keevan_Colton]

To put it another way, it is not up to the defendant to aid the prosecution in any way.

Wrong. If it were a physical piece of evidence, he would be compelled to turn it over and you would have no argument against it. You are simply confusing the password with a self-incriminating statement just because they're both word-based. If it was the combination to an impenetrable safe containing physical evidence, would you still make this "right to stay silent" argument?

The police are allowed to break it open, and they're free to brute force the password too...it's not unbreakable...no safe is either...they're both just measured in how long it takes to crack them.

[Keevan_Colton]

It's not the word based nature, it's the fact it's information that I'm hanging it upon. They can take physical evidence, and are empowered to take it if it isnt handed over. They have the laptop.

The thing is information is a different situation. Imagine for a moment directions to where some object is hidden that cant be found without them, now imagine that they were written down in some secret language known only to the defendant. They're legally entitled to take the object at the end of the directions, but the defendant cant be forced to translate the directions for them.

[Superboy]

would you still make this "right to stay silent" argument?

Isn't the right to stay silent absolute? This isn't rhetorical, I really don't know anything about this kind of law, but I was always under the impression that a person could always just sit and not say a word and not be punished for it.

Are there certain situations where there has been clear precedent of a person being forced to speak after pleading the 5th?

[Superboy]

[Fixed - Kev]

[Nova Andromeda]

Some stuff I googled on passwords and safe combinations (U.S.) which suggests a safe combination is protected by the Fifth amendment (hope it's correct so take it with a grain of salt for now):

Relevent part of decision concerning password:

In distinguishing testimonial from non-testimonial acts, the Supreme Court has compared revealing the combination to a wall safe to surrendering the key to a strongbox. See id. at 210, n. 9; see also United States v. Hubbell, 530 U.S. 27, 43 (2000). The combination conveys the contents of one's mind; the key does not and is therefore not testimonial. Doe II, 487 U.S. at 210, n. 9. A password, like a combination, is in the suspect's mind, and is therefore testimonial and beyond the reach of the grand jury subpoena.

Doe v. United States, 487 U.S. 201 (1988), footnote 9: http://supreme.justia.com/us/487/201/case.html

We do not disagree with the dissent that "[t]he expression of the contents of an individual's mind" is testimonial communication for purposes of the Fifth Amendment. Post at 487 U. S. 220, n. 1. We simply disagree with the dissent's conclusion that the execution of the consent directive at issue here forced petitioner to express the contents of his mind. In our view, such compulsion is more like "be[ing] forced to surrender a key to a strongbox containing incriminating documents," than it is like "be[ing] compelled to reveal the combination to [petitioner's] wall safe." Post at 487 U. S. 219.

-If this is closest there is to modern precedent on wall safe combinations then it seems the gov. is stuck using brute force methods.

[Nova Andromeda]

For completeness here's UNITED STATES v. HUBBELL 530 U.S. 27, but I don't currently know what relevence it has ....

[Nova Andromeda]

Some relevent part of UNITED STATES v. HUBBELL 530 U.S. 27:

We have held that "the act of production" itself may implicitly communicate "statements of fact." By "producing documents in compliance with a subpoena, the witness would admit that the papers existed, were in his possession or control, and were authentic." 19

...

Moreover, as was true in this case, when the custodian of documents responds to a subpoena, he may be compelled to take the witness stand and answer questions designed to determine whether he has produced everything demanded by the subpoena.2o The answers to those questions, as well as the act of production itself, may certainly communicate information about the existence, custody, and authenticity of the documents. Whether the constitutional privilege protects the answers to such questions, or protects the act of production itself, is a question that is distinct from the question whether the unprotected contents of the documents themselves are incriminating.

...

Compelled testimony that communicates information that may "lead to incriminating evidence" is privileged even if the information itself is not inculpatory. Doe v. United States, 487 U. S. 201, 208, n. 6 (1988). It is the Fifth Amendment's protection against the prosecutor's use of incriminating information derived directly or indirectly from the compelled testimony of the respondent that is of primary relevance in this case.