WHEN IT COMES TO LIBERTY. To me, the concept of a compelling public interest (read: state interest) is — or ought to be — an anathema to a free people. So long as there is no damage done by one citizen to another, the bright line between individual rights and the power of the state should be treated as though it were an unbreachable force field. Crossing it: not an option. No sovereign immunity. Civil penalties, Hell! Criminal penalties. Throw the book at ’em.
(In a nation where the individual citizen is sovereign, how does the doctrine of sovereign immunity for public officials hold sway?)
There is a case wending its way through the courts wherein investigators for the state “believe” evidence of guilt may be hidden behind an encrypted password-protected screen saver (or similarly-constructed system). The owner of the password refuses to divulge on Fifth Amendment grounds — arguing the password is protected as testimony perhaps tending to incriminate.
I say, “Stop right there.”
The mere assertion of the right, according to the Ninth Amendment:
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
…is — or ought to be — dispositive. You name it; you own it. The agents of the state shall not force self-incriminating testimony for any reason whatsoever, on pain of civil and criminal penalties. No immunity.
Now, waitjustadamnedminnit, Alger! That would make it impossible for police to do their jobs. You could never prove anything in court.
Except on the basis of eyewitness testimony. Yes.
And you don’t see the problem with this?
What? That the burden of proof be on the state? Seems to me the balance has tipped too long, too far in the other direction. Just bringing things back to center.
In the case mentioned above, the agents of the state are arguing an analogy (read: weasel-wording the law) that the state has been permitted in the past to compel the surrender of a key to a locked file cabinet and how is this different?
And I say, echoing Dolly above, nowwaitjustadamnedminnit! Let’s look at this the other way. Stipulating the analogy between a password and a key to a file cabinet for a moment, let us ask this question:
HOW IN THE HELL IS COMPELLING THE SURRENDER OF A KEY NOT A VIOLATION OF THE FIFTH AMENDMENT?
Hmmm? Weasel-word THAT.
(And, no, I do not accept precedent as a “because” reason. Ever.)
Cross-posted at Eternity Road.