Why criminals should always use combination safes
If you read my story from yesterday about the fight over whether a bank-fraud suspect should be forced to give up the password to an encrypted computer, then you may have been struck by the same question I was while writing it:
Can a crook really beat a search warrant by stashing incriminating documents in a combination safe but can’t by putting them in a lock-and-key safe?
After further research, that answer is: Yes, maybe.
There is no case I can find where the U.S. Supreme Court has directly addressed the questions of safe combinations and Fifth Amendment rights against self-incrimination. Instead, the combination-versus-key distinction first appears in a 1988 decision on whether a guy should have to hand over bank records to a grand jury. The majority of the court said he did. But Justice John Paul Stevens, in his dissent, wrote the now-magic words:
A defendant can be compelled to produce material evidence that is incriminating. Fingerprints, blood samples, voice exemplars, handwriting specimens, or other items of physical evidence may be extracted from a defendant against his will. But can he be compelled to use his mind to assist the prosecution in convicting him of a crime? I think not. He may in some cases be forced to surrender a key to a strongbox containing incriminating documents, but I do not believe he can be compelled to reveal the combination to his wall safe —- by word or deed.
A dissent is not legally binding. But Stevens’ combo-key metaphor made its way into a footnote in the majority’s decision, in which the majority appeared to endorse the premise while explaining why it disagreed with Stevens:
We do not disagree with the dissent that “[t]he expression of the contents of an individual’s mind” is testimonial communication for purposes of the Fifth Amendment. … We simply disagree with the dissent’s conclusion that the execution of the consent directive at issue here forced petitioner to express the contents of his mind. In our view, such compulsion is more like “be[ing] forced to surrender a key to a strongbox containing incriminating documents” than it is like “be[ing] compelled to reveal the combination to [petitioner’s] wall safe.”
That was enough for SCOTUS to lean on the metaphor again in a 2000 decision explaining why a grand jury subpoena requiring a man to assemble a whole bunch of documents for it that were self-incriminating to him was improper:
It was unquestionably necessary for respondent to make extensive use of “the contents of his own mind” in identifying the hundreds of documents responsive to the requests in the subpoena. … The assembly of those documents was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox.
So this seems pretty clearly to indicate that the Court would consider it a no-no to force somebody to turn over their lock combination. But is it possible that SCOTUS has been using this combo-key distinction all along because it’s an artful way to frame an issue rather than a settled matter of law?
Former Justice Department official Philip Reitinger has suggested as much, writing, “[T]he Supreme Court has indicated in dicta that being compelled to testify about the combination of a safe implicates the Fifth Amendment.” The key word there is “dicta” — as in, something that is not actually binding but is just the musings of the judge.
(Reitinger’s article, “Compelled Production of Plaintext and Keys” in a 1996 edition of the University of Chicago Legal Forum, is behind a pay wall. I found the reference in this interesting paper written by then-Georgetown University law student Aaron Clemens and published in a 2004 edition of the UCLA Journal of Law and Technology. It’s also worth noting that Reitinger’s article was apparently written before the 2000 decision. Meanwhile, Clemens, who largely disagrees with Reitinger’s conclusions, makes a compelling argument in the paper for why computer password protection by the Fifth Amendment wasn’t unforeseen by the Founding Fathers, who were plenty familiar with encoded communication.)
And, in fact, a federal court in Vermont has found a circumstance in which forcing a suspect to use a password to unlock a computer — as much an instance of pulling something from the suspect’s mind as requiring the suspect to unlock a combination safe — is OK. The distinctions made in that case could have direct relevance to the password case currently pending in Colorado. But that’s probably a subject for another post.
Until then, let’s call this combo-key distinction a kind of criminal’s version of Pascal’s Wager: Locking up your incriminating documents in a combination safe may not keep them out of government hands. But stashing them away in a lock-and-key safe most definitely won’t.