Is protection against self-incrimination dead in the digital era? (Poll)

Cyber Politics

How to balance between privacy and crime fighting? That’s one of the big questions now when we are entering the digitally connected era. Our western democracies have a set of well-established and widely accepted rules that control what authorities can and can’t do. One aspect of this has been in the headlines lately. That’s your right to “plead the Fifth”, as the Americans say.

Laws are different in every country, but most have something similar to USA’s Fifth Amendment. The beef is that “No person … shall be compelled in any criminal case to be a witness against himself,…”. Or as often expressed in popular culture: “You have the right to remain silent.” With more fancy words, protection against self-incrimination.

What this means in practice is that no one can force you to reveal information if authorities are suspecting you of a crime. You have the right to defend yourself, and refusal to disclose information is a legal defense tactic. But the police can search your home and vehicles for items, if they have the proper warrant, and there’s nothing you can do to stop that. In short, the Fifth Amendment protects what you know but not what you have.

Sounds fair. But the problem is that there was no information technology when these fundamental principles were formed back in 1789. The makers of the Fifth Amendment, and similar laws in other countries, could not foresee that “what you know” will expand far beyond our own brains. Our mobile gadgets, social media and cloud services can in the worst case store a very comprehensive picture of how we think, whom we have communicated with, where we have been and what we have done. All this is stored in devices, and thus available to the police even if we exercise our right to remain silent. Where were you last Thursday at 10 PM? Do you know Mr John Doe? What’s the nature of your relationship with Ms Jane Doe? Have you purchased any chemicals lately? Do you own a gun? Have you traveled to Boston during the last month? Have you ever communicated with mohammad@isis.org? These are all questions that an investigator could ask you. And all may still be answered by data in your devices and clouds even if you exercise your right to remain silent.

So has the Fifth Amendment lost its meaning? Would the original makers of the amendment accept this situation, or would they make an amendment to the amendment?

The situation is pretty clear for social media and cloud storage. This data is stored in some service provider’s data center. The police can obtain a warrant and then get your data without any help from you.(* Same thing with computers they take from your home. The common interpretation is that this isn’t covered by the Fifth Amendment. But what if you stored encrypted files on the servers? Or you use a device that encrypts its local storage (modern Androids and iPhones belong to this category). The police will in these cases need the password. This is something you know, which makes it protected. This is a problem for the police and countries have varying legislation to address the problem. UK takes an aggressive approach and makes it a crime to refuse revealing passwords. Memorized passwords are however protected in US, which was demonstrated in a recent case.

Biometric authentication is yet another twist. Imagine that you use your fingerprint to unlock your mobile device. Yes, it’s convenient. But it may at the same time reduce your Fifth Amendment protection significantly. Your fingerprint is what you are, not what you know. There are cases in the US where judges have ruled that forcing a suspect to unlock a device with a fingerprint isn’t in conflict with the constitution. But we haven’t heard the Supreme Court’s ruling on this issue yet.

So the Fifth Amendment, and equal laws in other countries, is usually interpreted so that it only protects information stored in your brain. But this definition is quickly becoming outdated and very limited. This is a significant ethical question. Should we let the Fifth Amendment deteriorate and give crime fighting higher priority? Or should we accept that our personal memory expands beyond what we have in our heads? Our personal gadgets do no doubt contain a lot of such information that the makers of Fifth Amendment wanted to protect. If I have the right to withhold a piece of information stored in my head, why should I not have the right to withhold the same information stored elsewhere? Is there really a fundamental difference that justifies treating these two storage types differently?

These are big questions where different interests conflict, and there are no perfect solutions. So I pass the question to you. What do you think?

 

Safe surfing,
Micke

 

Image by OhLizz

 

(* It is this simple if the police, the suspect and the service provider all are in the same country. But it can get very complicated in other cases. Let’s not go there now as that would be beside the point of this post.

 

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