Password encryption may not fall under US Fifth Amendment

The Fifth Amendment in the US has been used by defendants to protect themselves from divulging information that could incriminate them in an investigation — passwords and passcodes included.

However, suspects can be forced by law enforcement to reveal their passwords for electronic devices as it is doesn’t violate the amendment, a court from Denver ruled following a mortgage fraud investigation in Colorado when the suspect refused to reveal her laptop password, claiming she couldn’t remember it.

Yet the ruling is debatable. US judges have different opinions, sometimes even in the same state, as was the case recently in Florida.

“I swear, under oath, I’ve given [the detectives] the password,” said defendant Christopher Wheeler, 41, sentenced to 180 days in jail for revealing a passcode the police could not use to access his iPhone.

While the man was jailed last week for not revealing his iPhone passcode to the police in a child abuse investigation, another, who claimed he couldn’t remember his password that could have proved valuable in an extortion investigation, was set free by a different judge.

Muhammad Rabbani, international director of human rights group Cage, was arrested in November when returning to the UK for refusing to reveal his laptop and phone passwords at Heathrow Airport. The airport interrogation was part of “Schedule 7” that “allows police to question and detain travelers at airports and other border points for the purpose of determining if they are involved in terrorism.”

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