Computers, Privacy & the Constitution

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TheodoreSmithFirstPaper 3 - 18 Apr 2009 - Main.EbenMoglen
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Identity and the 5th Amendment

-- TheodoreSmith - 09 Mar 2009

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  • I think this argument is very well mounted. I'm not sure that it's convincing. You need to go very far from one case, which doesn't seem to be part of any larger constellation, to the existence of a constitutional conundrum requiring a "rethinking" project. Basic rules of prudential reasoning that lawyers expect to apply in other contexts are not suspended in the presence of computers. And indeed, it seems more likely that Boucher is correctly decided on narrow facts that uncommonly arise rather than that the self-incrimination clause has failed. Plainly if you show a document to an investigator and then before his eyes drop it into a safe, you will have a tough time arguing that being required to produce the safe's combination is compulsory testimony as to control and possession, when all the investigator wants is the content of the document, being in possession of more than sufficient evidence of your control and possession already. You speak sometimes in the piece as though the issue were whether a man has a right to keep that document private. All parties are agreed that he does not: a search warrant can issue for almost any document. All that's at stake is whether being forced to give access (which the execution of any search warrant necessarily entails) is sometimes also a compulsory testimonial act.
 

 
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