…After the Horse has Escaped. #PDA and the #5thAmendment


 

I closed my last post with this line; "Now comes the more difficult argument; explaining how a password is exactly the same as a key…"

In my view, the law is a password.  For example, right or wrong, a police officer may perform a search because he or she believes the law permits it.  A judge is another interface who decides whether to grant or deny access to information.  There's one major difference between a police officer, a judge and a computer, of course.  An officer or judge will make decisions based on several factors, whereas a computer – in proper working order – will decide based on pass/fail.  Nevertheless, like our friend, Maxwell Smart, the law is just another door in a series that parties must pass through.

So, what if we have a person under arrest who has password-protected their PDA and refuses to divulge it to the government?  Do they have 5th Amendment protection?  For starters, here's an excellent, big-picture view of the issue and emerging case law (I linked to this on Twitter a few days ago).

I think I get a bad rap sometimes.  My views may appear to be pro-defense versus pro-government.  However, if you've read my bio, you know that I've worked with the District Attorneys office.  I've also served as criminal defense counsel (this is not an unusual situation, by any means).  For me, the issues are simple.  Individuals on either side of the law have rights and responsibilities and it's important to know what they are (assuming any one of us can keep up with the rapid changes).

Also, the game has changed in another major way.  I understand that a lot of criminals use cellular devices to facilitate their behavior, but a majority of law-abiding citizens do not.  If one such citizen is arrested for, say, disturbing the peace, should the government have a right to search through all of the data on that person's Blackberry?  What if he or she is the Vice President of a major corporation and the device is issued by said corporation – and contains privileged communications?

Do I have the answer?  At the moment, it depends on what jurisdiction I happen to be standing in when you ask me. 

Which do you think is a better scenario from an individual-rights standpoint: 1) Spending time and funds (possibly while defendant is incarcerated) arguing that a search was illegal, or 2) Preventing the search from occurring in the first place?

I tweeted another story that produced this quote from a University criminal law professor:

"We're seeing a whole generation for whom privacy is not important."

I can't say that I agree with that assessment.  In most cases, people still don't grasp the concept that what they post online can be seen by anyone.  They only figure it out when their privacy has already been breached and it's too late to do anything about it.

You know what they say; nobody likes a cop until they need one…

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