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Comment Re:Fifth amendment zone of lawlessness (Score 1) 431

Once you put information into anything except your own head, it's fair game for a subpoena or search warrant. Period. Encryption doesn't matter. You can be compelled to provide keys or passwords, because the keys and passwords themselves aren't evidence against you. They just unlock the evidence that already exists.

Compelled to hand over a PHYSICAL key, I can see that. But a key that exists only in your head? Nope. The 5th Amendment would have to be itself amended to add that.

And I don't see 2/3rds of the States ratifying THAT without some capitol buildings burning to the ground.

Comment Re:Lawful access is uneffected. (Score 1) 431

It is unsettled law whether the 5th Amendment protects against subpoenaing someone for their disk encryption keys, without giving them immunity for whatever they find. Current case law seems to be leaning toward that it is. [youtube.com]

That is exactly how 5th Amendment law works.

There is only one way you can EVER be compelled to testify and actually ANSWER their questions (you aren't allowed to lie, but you can refuse to answer, the "right to remain silent" applies to your TRIAL as well which is why defendants can't be compelled to testify) and that is you have to be given IMMUNITY. If the prosecution gives your testimony immunity you cannot be prosecuted for what you say (unless you commit perjury and lie).

Comment Re:"Court-ordered" searches? Baloney! (Score 1) 431

"Let's be honest - the complaint here is that default encryption denies access to data that, up to now, has been obtained via warrantless methods. A court can still order you to hand over your encryption keys."

Yes, their chief bitch is they now can't just TAKE your data without you being aware of it.

As to the second part, I don't see how a court can ORDER you to surrender your 5th Amendment right against self incrimination. If you believe the contents of your phone (to use an example) might incriminate you, and it's encrypted, you CANNOT be compelled to just give them the key.

And besides, if your key was complex, who's to say the unbelievable STRESS of dealing with the police, being charged with a crime, etc, didn't cause you to forget it? They can't PROVE you actually remember it. A negative CANNOT be proven (or disproven).

Comment Re:When everyone is guilty... (Score 5, Interesting) 431

Yep. We have so many byzantine laws and regulations (which, by the way, WE are expected to know them all, ignorance is no defense, but the GOVERNMENT doesn't, ignorance is a defense for THEM violating our rights) that no one person can possibly know, THOUSANDS MORE a year are added.

Everyone probably commits at least one felony a week without knowing it.

The solution is that EVERY LAW AND REGULATION should have a SUNSET DATE. To keep them active they should have to be re-authorized at least every 4 years. If the government had to do that only the most NECESSARY laws would remain on the books. Inherent government laziness would then work on the side of Liberty.

Comment Re:Sucks to be law enforcement in a Republic (Score 4, Informative) 431

Actually the reason the Constitution originally didn't have a Bill of Rights is that the people who drafted it were afraid that if they did so it would be interpreted to mean THIS IS ALL THE RIGHTS CITIZENS HAVE.

Which was not their intention. The Constitution is supposed to be an EXHAUSTIVE enumeration of all the power the Federal Government has. The rights of the People are supposed to be undefined and MANY.

This is why the 9th and 10th Amendments were part of the Bill of Rights to clarify that:

Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

(the rights of the people are MANY and INDEFINITE)

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

(the powers of the government are FEW AND WELL DEFINED)

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