Judge orders Colorado woman to unencrypt laptop

[Fiery Winds]

SCOTUS ruled 5-4 upholding a Nevada law that requires a person to identify oneself when questioned by police.  I agree with Stevens in his minority opinion:

In a dissent, Justice John Paul Stevens says the Fifth Amendment protection against self-incrimination must always shield a criminal suspect who is being questioned by police. Since police may only request the name of someone they find suspicious (under the upheld Nevada statute), that person is by definition a criminal suspect who may not be compelled to make statements that might incriminate him, Justice Stevens says.

"The court reasons that we should not assume the disclosure of petitioner's name would be used to incriminate him," Justice Stevens writes. "But why else would an officer ask for it?"

Stevens adds, "A name can provide the key to a broad array of information about a person particularly in the hands of a police officer with access to a range of law enforcement databases."

https://www.csmonitor.com/2004/0622/p01s01-usju.html

That said, there are still multiple methods of determining someone's ID without you verbally stating it.  You can be searched for ID on your person, have the tags run on your car (if stopped), look up property records, etc. all while not saying a word. 

[rumborak]

I think that's taking the paranoia a bit too far. If you're not allowing the police to ask you for your name, you're paralyzing them to a point where they can not possibly do their job.
What about how a person looks? I a killer is on the run who's been described as 6'6'' with curly hair, should the police not look at anybody? After all, you (innocent person) being 6'6'' and having that hair would be possible self-incrimination to the police.

rumborak

[El Barto]

I think that's taking the paranoia a bit too far. If you're not allowing the police to ask you for your name, you're paralyzing them to a point where they can not possibly do their job.

I don't think so.  There are plenty of other means they can use, and plenty of instances where you're required to fork over an ID anyway (driving a vehicle comes to mind). 

Regardless,  Hiibel is an interesting issue.  For one thing, it only applies in states that have passed a statute.  It's only employed within the context of a Terry-stop, so you've got some protection (albeit minimal) there.  Most importantly, the court left open the possibility that your name actually might incriminate you in some cases.

The problem I have is that it's so open to abuse that Johnny can basically demand ID from anybody for any reason and arrest them if they tell him to get bent.  Terry sounds great in principle, but any cop with more than 2 days experience can articulate a reasonable suspicion, rendering it pointless.  I recall an incident from my youth where some friends and I were pulled over for driving with long hair.  That resulted in one of us taking a ride.  In Tejas, he could have conceivably refused to ID himself (he was a passenger), but in plenty of other states you'd get busted for it.  This really takes things to a different level.

[Scheavo]

I think that's taking the paranoia a bit too far. If you're not allowing the police to ask you for your name, you're paralyzing them to a point where they can not possibly do their job.

I don't think so.  There are plenty of other means they can use, and plenty of instances where you're required to fork over an ID anyway (driving a vehicle comes to mind). 

Well, if you take this principle seriously, then you shouldn't be forced to register your car, have insurance, have a license etc. Those databases that exist, shouldn't exist for some people.

To be clear, I think giving your name and identifying yourself is worth any harm to your personal identity. Being able to clearly identify yourself brings quite a lot of security and benefits socially. I just still don't see how giving a key is drastically different, it's a difference of degree not of kind, and I'm not sure where the line is.

[El Barto]

Well, if you take this principle seriously, then you shouldn't be forced to register your car, have insurance, have a license etc. Those databases that exist, shouldn't exist for some people.

You're not forced to do any of those things.  You agree to them in exchange for the right to drive an automobile.  Don't like it?  Buy a horse.

The result of Hiibel was something very different.  Rather than agreeing to carry a license in exchange for a privilege you want, you're told that Johnny can walk up to you and demand to see ID under the threat of arrest.  I don't consider that congruent to a free society. 

[Scheavo]

Rather than agreeing to carry a license in exchange for a privilege you want, you're told that Johnny can walk up to you and demand to see ID under the threat of arrest.  I don't consider that congruent to a free society.

And I'm just pointing out how a "free society" is still one with some government involvement, even if it's just registering vehicles, registering licenses, etc. I know you don't disagree with this, but like I said, I'm not sure where you're drawing the line on the issue of "self incrimination," or taking witness against yourself.

I also never said I felt ID's and such should be to such a degree that you can be arrested for not having one. But I think if you don't have one, and your suspected of a crime, you're just as likely to get arrested, law or not, and it seems nonsequential to me. The benefit comes when you can prove you are not someone else, and thus don't have to deal with unnecessary bullshit. Making the system more efficient benefits everyone, and can theoretically lead to a practically more free society.

[El Barto]

I'm actually not viewing Hiibel in general as a matter of self incrimination, although I can imagine plenty of instances where it could be, and I suppose that the courts would have to consider those should they arise. 

I'm also not flatly condemning Hiibel.  I'm not sure how it really fits in with the right to remain silent, but that's a different matter.  Plus, a different court already determined that Miranda didn't apply to biographical information.  What I am concerned about, and it's a recurring theme in my posts, is the notion that we're all suspects.  That's what's changed over the last 12 or so years.  I don't feel as if we're presumed innocent anymore, and the ability for Johnny to approach me and demand my name is another indicator of that.  If I've given him probable cause to hassle me, then so be it.  If I'm doing something that requires me to be identifiable, okey-dokey.  If I'm walking down the street, minding my own business, then who I am is of no concern of his. 

Unfortunately, we've fostered an environment where we all have to be subject to suspicion, all the time.  The safeguards we have in place, fancy concepts like probable cause and reasonable suspicion, don't really help us since cops don't give a shit about them.  All we can really hope for is that the courts continue to flag cases as due process violations to half-way keep LEA on their side of the fence. 

As it pertains to Colorado real estate fraud girl, she sounds like a real cunt.  She was ripping off normal citizens and if she's guilty I hope they nail her.  Yet I have no problem reconciling that with my belief that the cost of a free society is that you don't always get to burn somebody.  As I said before, when we're talking about vesting The Man with even more power to supervise our daily lives, like demanding personal information, be it an encryption key or your name and DOB, then I'd much rather err on the side of not going far enough.  The alternative is to give him too much power in the hopes that we can wrest it back from him once it's become too late. 

[slycordinator]

If they can't prove that there is evidence on the laptop, then there is no evidence on her laptop.  They can't meet the burden of proof.

Isn't that like saying because you can't prove god exists, he doesn't exist? Or that because you can't prove god doesn't' exist, he does exist?

That's a philosophical question rather than a legal one. In courts, things that cannot be proven are generally ignored.

On a different note, the woman should've used something that supported plausible deniability, like TrueCrypt.

[Scheavo]

What I am concerned about, and it's a recurring theme in my posts, is the notion that we're all suspects. 

Well, I can agree with this sentiment, I just think it's a different issue, in the end. It's a social attitude towards each other, and I think if we're suspicious of each other, it doesn't fucking matter if there's a government, or not, it's going to make society a lot worse. I mean, imagine thinking your neighbor was spying on you, suspected you of something. It's impossible for societal attitudes not to affect the police, and in any world you could live in, this is going to basically end up sucking.

[El Barto]

The difference is that my neighbor doesn't have the ability to shuffle me into an unmarked Gulgstream and fly me off to Bumfuckistan to have my nuts electrocuted.  Unlce Sammy has been known to do that. 

[Scheavo]

The difference is that my neighbor doesn't have the ability to shuffle me into an unmarked Gulgstream and fly me off to Bumfuckistan to have my nuts electrocuted.  Unlce Sammy has been known to do that.

Uncle Sammy has the power to do it, because your neighbor is suspicious of you. Or, lets put it differently, if your neighbors are suspicious of you, how long do you think it would be before there was someone, some institution, doing the same?

[El Barto]

Well I certainly see your point.  However, I'd say that the government has snatched such power for it's own devices, and the people allowed it to happen, rather than the people insisting that the government do so. 

[Scheavo]

Well I certainly see your point.  However, I'd say that the government has snatched such power for it's own devices, and the people allowed it to happen, rather than the people insisting that the government do so.

Which is why I carefully phrased my question the way I did, otherwise the point would have been lost.

And I still think that, deep down, many people are suspicious of their neighbor. I mean, we're just not nearly as connected as we used to be (at least with the person next door), and as a species, we're built to be somewhat suspicious of "other" people.