[IP] Can you be compelled to give a password? [was:

[Andrew Grosso]

Police Blotter: Laptop border searches OK'd]

As a former Assistant U.S. Attorney, allow me to comment.

Information may be obtained by the government from a person in one of
four ways:  (1) it is voluntarily provided; (2) by regulation in a
heavily regulated industry; (3) by subpoena; and (4) by a search and
seizure warrant.   We are concerned with number 3, the subpoena.

A person can refuse to produce incriminating information in response
to a subpoena under the Fifth Amendment. Please note that the
password is not protected.   If it is written down somewhere, the
document on which it is written is not protected by the privilege.
The *act* of producing the document or the password itself *may* be
privileged, if such an act is itself incriminating.  For example, if
the password was used in a crime, and the fact that you have the
password in your possession tends to show that you participated or
conspired in the crime, and then the Fifth Amendment privilege is
applicable to protect you from implicating yourself in the crime.
The Government *can* immunize you to the limited extent necessary to
obtain the password - it cannot then use the fact that it got the
password from you in order to prosecute you.  This is known as "Doe"
immunity, and there is an extensive line of cases that has developed
in this area.  Webster Hubbell, the former Associate Attorney General
who was convicted of tax fraud by Ken Starr's IC Office, eventually
had his conviction vacated because Starr's legal team failed to
follow the rules when they obtained, from him (by subpoena), his tax
records.

If the government is not investigating a crime, then it may use an
administrative or civil subpoena to try and get the password.  If the
witness invokes the Fifth Amendment, then the government can immunize
that person and compel production.

The second point, above, concerning a regulated industry, applies to
such areas as Medicare and Medicaid, Government contractors for
procurement matters, industrial health and safety mattes,
environmental concerns, etc.  The same analysis as above would apply.

Border searches are a different animal, since the government has the
right to inspect items crossing the border without a warrant.
However, if the password is in the traveler's head, then that is not
an "item" that can be inspected at the border.  The information on
the laptop might very well be such an item, however, and if the only
way to convince the government to allow you to cross the border is to
show the border guards what is on the laptop, then the traveler might
very well face the choice of turning on the laptop and opening
files,, using the password, or not crossing the border.  I do not
believe that, even here, the traveler would have to produce the
password itself.


Andrew Grosso, Esq.
Andrew Grosso & Associates
1250 Connecticut Avenue, NW, Suite 200
Washington, D.C. 20036
(202) 261-3593
Email: Agrosso at acm.org
Web Site: www.GrossoLaw.com
----- Original Message -----
From: David Farber
To: ip at v2.listbox.com
Sent: Friday, July 28, 2006 2:26 PM
Subject: [IP] Can you be compelled to give a password? [was: Police
Blotter: Laptop border searches OK'd]



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