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Does the Fifth Amendment only apply to US citizens? The reason I ask is this: if I am traveling to the US and the TSA asks me to decrypt my laptop or unlock my

by thex86 13y ago

Does the Fifth Amendment only apply to US citizens? The reason I ask is this: if I am traveling to the US and the TSA asks me to decrypt my laptop or unlock my phone, am I protected under the Fifth Amendment? Well, are US citizens protected under it at the airport?

eof 13y ago
Yes in theory everyone.. not just nationals/citizens are protected by the constitution/bill of rights. But the reality is that no, there are too many exceptions to what was supposed to be a source of truth in our laws to do much more than 'pretend' we are protected by the constitution; citizens or otherwise.
- saraid216 13y ago
  > Yes in theory everyone.. Um. Which theory is this? Last I checked, as an American citizen, I'm not subject to Russian law. Why are Russians subject to American law?
  - john_b 13y ago
    The original comment was asked in the context of traveling to the US. If you travel to Russia, you are most definitely subject to Russian laws.
  - deleted 13y ago
    [deleted]
  - dllthomas 13y ago
    Russians being protected by the 5th Amendment is not an example of Russians being subject to American laws, but an example of the American government being subject to American laws.
  - deleted 13y ago
    [deleted]
  - npsimons 13y ago
    In general, the US constitution only specifies "citizens" and not "people" when it's talking about things like voting and holding office, etc. Rights (such as the bill of rights) are generally expressed as belonging to "people", not just the citizens of the US. It's also in the spirit of the declaration of independence that "all men are created equal", which would lead one to believe that they all have certain inalienable rights, citizen or otherwise. Just because the current xenophobic culture that is popular today doesn't jive with that doesn't change it. It also doesn't mean that Russians are subject to American law (at least not while in Russia), but that for things such as rights, they apply to everyone. So, for instance, some would maintain that warrantless searches, "close" to the border or otherwise, are unconstitutional no matter who they are performed on.
    - rayiner 13y ago
      That's a wild distortion of the use of the word "people" in the Constitution. Uses of the word "people" in the Bill of Rights must be interpreted consistently with the uses of that word in the Constitution proper. The word "people" is used only twice in the Constitution proper. Once in the Preamble: "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America." Once in Article I, Section 2: "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States." In both cases, it is clear that "people" refers to the body politic--the people who, by their consent, are governed by the United States.
      - MereInterest 13y ago
        I would interpret it a different way. Since the other two uses of "people" saw it necessary to clarify, then the word "people" without those clarifications must refer to people in general.
      - venomsnake 13y ago
        I know this is a bit offtopic but why is the obsession with the semantics and the literal text of the Constitution? It is just words on paper created by mortal men that certainly were unable to see 200 years into the future. And with the advance of technology some parts will begin to show their age. Both the government and the citizens can do a lot of things right now that they could not foresee. And yet the idea of the changing, expanding and clarifying it seems to be a taboo in modern US politics. People are only allowed to interpret it, but not allowed to talk about changing it. It is as close to theology as I could not imagine. I don't know of any other country that treats its founding laws that way.
  - eof 13y ago
    uh; if you are in russia you are subject to russian law..
  - e12e 13y ago
    > Um. Which theory is this? Last I checked, as an American citizen, I'm not subject to Russian law. Why are Russians subject to American law? You are on Russian soil (unless you have diplomatic immunity). It would be reasonable (but perhaps not true) to assume that if you're subject to limits of law in a jurisdiction you're also privy to its protection (presumption of innocence etc).
pavel_lishin 13y ago
Apparently, it doesn't matter if you're within 100 miles of a border: https://www.aclu.org/national-security_technology-and-liberty/are-you-living-constitution-free-zone https://www.aclu.org/national-security_technology-and-libert...
- tedunangst 13y ago
  If you're within 100 miles of the border and being questioned pursuant to a border crossing.
- rayiner 13y ago
  That page is very misleading. Not only does it wildly distort the original policy of CBP that included the "100 miles" thing, but it ignores the fact that the "100 miles" aspect has since been retracted. All the original policy stated is that the "border search exception" to the 4th amendment did not have to be at the literal border. This was to accommodate border checkpoints in the southwestern U.S. which are for practical reasons not right at the border but a few miles inland along major highway routes.
286c8cb04bda 13y ago
It won't work on Customs and Immigration. When you're talking to them you're not "in the US" yet. After that, yes, the privilege against self-incrimination is granted to everyone in the United States, citizen or not. Caveat: The "border search exception" has some other pretty enormous holes.
- MichaelGG 13y ago
  Hopefully a lawyer will chime in, but I searched this a while ago. As a US citizen, CBP cannot require you to answer any questions beyond your customs declaration. They can detain you, but you don't have to say anything; they cannot deny you entry. As a non-citizen, I don't believe you need to answer any questions, but they may decide to just deny you entry at that point, and it could cause problems if you ever wish to return. Best idea I've heard of is to have your company encrypt the laptop before you travel and do not provide you the key until you're done travelling. The one case I am aware of was when a CBP agent stated they saw child porn on the laptop, which the person subsequently locked. In that case a court ordered him to provide the key.
  - gknoy 13y ago
    Better idea: Buy a laptop when you get here, or have it shipped to you, and load it by downloading from the VPN. Upload your data before you return, and then Wipe/Destroy/Donate before crossing borders.
    - jamesbritt 13y ago
      One of the things I like about my W500 Thinkpad (and my Dell D830 and ilk before that) is that it is insanely easy to swap the hard drive. If I were concerned about traveling with certain data I would use a travel drive. Swap it in before going, and, as suggested, download what I needed once safely at my destination. Now I'm wondering if there are other ways to carry that data with me in a format that would resist inspection. For example, on an SD card inside a camera. Or on a DVD. Break up the data into smaller files and named them variations on foo.jog or bar.avi or something, and reassemble things later. For something like that the question might be whether I could be compelled to install or copy files to the active machine for inspection or evaluation if anyone got wise.
maaku 13y ago
Even if the 5th amendment applies, expect to be denied entry if you try to claim protection...
rayiner 13y ago
There are two issues: 1) Does the Fifth Amendment apply? 2) Does the Fifth Amendment prohibit certain things? The Fifth Amendment, like the others, generally applies to not just citizens, but legal residents and others who are on U.S. soil. The second issue is what's interesting here. The literal text of the Fifth Amendment is: "No person... shall be compelled in any criminal case to be a witness against himself." Literally, it prohibits people from being forced to testify against themselves in a criminal trial. The Supreme Court has ready it very broadly to prohibit all sorts of other things, but one limit it has recognized is that it still only applies to "testimonial" incrimination. Think: testifying on a witness stand. Non-testimonial acts, like forcing someone to unlock a box, are not covered. Some courts have held, and the EFF argues, that providing an encryption key is unlike providing the key for a box because it requires you to recount things that are in your memory, and is therefore testimonial.
- derekp7 13y ago
  A close analogy is: Even if you can be compelled to open a lock box, if it is filled with papers that are in an unknown language, can you then be compelled to translate those documents? That, to me, is the equivalent to providing a decryption key.
  - rayiner 13y ago
    I don't think it's a great analogy, because translating documents requires a wholly different level of mental involvement than simply recounting an encryption key. Note that even fishing out and providing a regular key requires some degree of mental involvement.
    - derekp7 13y ago
      What about providing information such as what language the document is written in? Of course, the real equiv. is if the document is written in code, then can you be required to reveal the secrets of the code?
- stcredzero 13y ago
breser 13y ago
You probably want to read EFF's excellent "Guide to Protecting Electronic Devices and Data at the U.S. Border": https://www.eff.org/deeplinks/2010/11/effs-guide-protecting-devices-data-border https://www.eff.org/deeplinks/2010/11/effs-guide-protecting-... I'd expect that if CBP is asking for your encrytion key and you are not a U.S. citizen and you refuse to provide it you're probably going to be refused entry. Being refused entry isn't to be taken lightly. It may very well mean you will never be allowed entry again. As others have pointed out it's probably better to simply not know the encryption key or to download your data after arriving. Which are covered in the guide I linked. Your post mentioned the TSA but I'm not aware of the TSA asking for encryption keys. I'd be surprised if they ever do or have since their mandate is aircraft safety. Searching data would not likely be allowable under the search exceptions they operate under. Your concern should be towards CBP doing the search while clearing passport control/customs.
sigkill 13y ago
This might just be a thought exercise, but I remember reading somewhere that 100 miles from the borders and 50mile radius at all port of entries the Amendments do not apply. Also, these explicitly state 'persons' not citizens or residents so in that sense you're safe.

by thex86 13y ago

eof 13y ago

Yes in theory everyone.. not just nationals/citizens are protected by the constitution/bill of rights. But the reality is that no, there are too many exceptions to what was supposed to be a source of truth in our laws to do much more than 'pretend' we are protected by the constitution; citizens or otherwise.

saraid216 13y ago
> Yes in theory everyone.. Um. Which theory is this? Last I checked, as an American citizen, I'm not subject to Russian law. Why are Russians subject to American law?
- john_b 13y ago
  The original comment was asked in the context of traveling to the US. If you travel to Russia, you are most definitely subject to Russian laws.
- deleted 13y ago
  [deleted]
- dllthomas 13y ago
  Russians being protected by the 5th Amendment is not an example of Russians being subject to American laws, but an example of the American government being subject to American laws.
- deleted 13y ago
  [deleted]
- npsimons 13y ago
  In general, the US constitution only specifies "citizens" and not "people" when it's talking about things like voting and holding office, etc. Rights (such as the bill of rights) are generally expressed as belonging to "people", not just the citizens of the US. It's also in the spirit of the declaration of independence that "all men are created equal", which would lead one to believe that they all have certain inalienable rights, citizen or otherwise. Just because the current xenophobic culture that is popular today doesn't jive with that doesn't change it. It also doesn't mean that Russians are subject to American law (at least not while in Russia), but that for things such as rights, they apply to everyone. So, for instance, some would maintain that warrantless searches, "close" to the border or otherwise, are unconstitutional no matter who they are performed on.
  - rayiner 13y ago
    That's a wild distortion of the use of the word "people" in the Constitution. Uses of the word "people" in the Bill of Rights must be interpreted consistently with the uses of that word in the Constitution proper. The word "people" is used only twice in the Constitution proper. Once in the Preamble: "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America." Once in Article I, Section 2: "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States." In both cases, it is clear that "people" refers to the body politic--the people who, by their consent, are governed by the United States.
    - MereInterest 13y ago
      I would interpret it a different way. Since the other two uses of "people" saw it necessary to clarify, then the word "people" without those clarifications must refer to people in general.
    - venomsnake 13y ago
      I know this is a bit offtopic but why is the obsession with the semantics and the literal text of the Constitution? It is just words on paper created by mortal men that certainly were unable to see 200 years into the future. And with the advance of technology some parts will begin to show their age. Both the government and the citizens can do a lot of things right now that they could not foresee. And yet the idea of the changing, expanding and clarifying it seems to be a taboo in modern US politics. People are only allowed to interpret it, but not allowed to talk about changing it. It is as close to theology as I could not imagine. I don't know of any other country that treats its founding laws that way.
- eof 13y ago
  uh; if you are in russia you are subject to russian law..
- e12e 13y ago
  > Um. Which theory is this? Last I checked, as an American citizen, I'm not subject to Russian law. Why are Russians subject to American law? You are on Russian soil (unless you have diplomatic immunity). It would be reasonable (but perhaps not true) to assume that if you're subject to limits of law in a jurisdiction you're also privy to its protection (presumption of innocence etc).

pavel_lishin 13y ago

Apparently, it doesn't matter if you're within 100 miles of a border: https://www.aclu.org/national-security_technology-and-liberty/are-you-living-constitution-free-zone https://www.aclu.org/national-security_technology-and-libert...

tedunangst 13y ago
If you're within 100 miles of the border and being questioned pursuant to a border crossing.
rayiner 13y ago
That page is very misleading. Not only does it wildly distort the original policy of CBP that included the "100 miles" thing, but it ignores the fact that the "100 miles" aspect has since been retracted. All the original policy stated is that the "border search exception" to the 4th amendment did not have to be at the literal border. This was to accommodate border checkpoints in the southwestern U.S. which are for practical reasons not right at the border but a few miles inland along major highway routes.

286c8cb04bda 13y ago

It won't work on Customs and Immigration. When you're talking to them you're not "in the US" yet. After that, yes, the privilege against self-incrimination is granted to everyone in the United States, citizen or not. Caveat: The "border search exception" has some other pretty enormous holes.

MichaelGG 13y ago
Hopefully a lawyer will chime in, but I searched this a while ago. As a US citizen, CBP cannot require you to answer any questions beyond your customs declaration. They can detain you, but you don't have to say anything; they cannot deny you entry. As a non-citizen, I don't believe you need to answer any questions, but they may decide to just deny you entry at that point, and it could cause problems if you ever wish to return. Best idea I've heard of is to have your company encrypt the laptop before you travel and do not provide you the key until you're done travelling. The one case I am aware of was when a CBP agent stated they saw child porn on the laptop, which the person subsequently locked. In that case a court ordered him to provide the key.
- gknoy 13y ago
  Better idea: Buy a laptop when you get here, or have it shipped to you, and load it by downloading from the VPN. Upload your data before you return, and then Wipe/Destroy/Donate before crossing borders.
  - jamesbritt 13y ago
    One of the things I like about my W500 Thinkpad (and my Dell D830 and ilk before that) is that it is insanely easy to swap the hard drive. If I were concerned about traveling with certain data I would use a travel drive. Swap it in before going, and, as suggested, download what I needed once safely at my destination. Now I'm wondering if there are other ways to carry that data with me in a format that would resist inspection. For example, on an SD card inside a camera. Or on a DVD. Break up the data into smaller files and named them variations on foo.jog or bar.avi or something, and reassemble things later. For something like that the question might be whether I could be compelled to install or copy files to the active machine for inspection or evaluation if anyone got wise.

maaku 13y ago

Even if the 5th amendment applies, expect to be denied entry if you try to claim protection...

rayiner 13y ago

There are two issues: 1) Does the Fifth Amendment apply? 2) Does the Fifth Amendment prohibit certain things? The Fifth Amendment, like the others, generally applies to not just citizens, but legal residents and others who are on U.S. soil. The second issue is what's interesting here. The literal text of the Fifth Amendment is: "No person... shall be compelled in any criminal case to be a witness against himself." Literally, it prohibits people from being forced to testify against themselves in a criminal trial. The Supreme Court has ready it very broadly to prohibit all sorts of other things, but one limit it has recognized is that it still only applies to "testimonial" incrimination. Think: testifying on a witness stand. Non-testimonial acts, like forcing someone to unlock a box, are not covered. Some courts have held, and the EFF argues, that providing an encryption key is unlike providing the key for a box because it requires you to recount things that are in your memory, and is therefore testimonial.

derekp7 13y ago
A close analogy is: Even if you can be compelled to open a lock box, if it is filled with papers that are in an unknown language, can you then be compelled to translate those documents? That, to me, is the equivalent to providing a decryption key.
- rayiner 13y ago
  I don't think it's a great analogy, because translating documents requires a wholly different level of mental involvement than simply recounting an encryption key. Note that even fishing out and providing a regular key requires some degree of mental involvement.
  - derekp7 13y ago
    What about providing information such as what language the document is written in? Of course, the real equiv. is if the document is written in code, then can you be required to reveal the secrets of the code?
stcredzero 13y ago

breser 13y ago

You probably want to read EFF's excellent "Guide to Protecting Electronic Devices and Data at the U.S. Border": https://www.eff.org/deeplinks/2010/11/effs-guide-protecting-devices-data-border https://www.eff.org/deeplinks/2010/11/effs-guide-protecting-... I'd expect that if CBP is asking for your encrytion key and you are not a U.S. citizen and you refuse to provide it you're probably going to be refused entry. Being refused entry isn't to be taken lightly. It may very well mean you will never be allowed entry again. As others have pointed out it's probably better to simply not know the encryption key or to download your data after arriving. Which are covered in the guide I linked. Your post mentioned the TSA but I'm not aware of the TSA asking for encryption keys. I'd be surprised if they ever do or have since their mandate is aircraft safety. Searching data would not likely be allowable under the search exceptions they operate under. Your concern should be towards CBP doing the search while clearing passport control/customs.

sigkill 13y ago

This might just be a thought exercise, but I remember reading somewhere that 100 miles from the borders and 50mile radius at all port of entries the Amendments do not apply. Also, these explicitly state 'persons' not citizens or residents so in that sense you're safe.