3-14-2008 National:
We are cautioned to create undecipherable passwords and personal identification numbers to protect our privacy, identity and property. On the flip side, these protections may be put to the test in a criminal investigation.
Until recently, the Fifth Amendment provided guidance in responding to demands for keys to lock boxes and combinations for safes. Now suspects are being asked to disclose information that will access computer hard drives and open encrypted files. How far will the Constitution protect the right against self-incrimination in light of increasingly sophisticated means of securing computer contents?
Secret writing is as old as writing itself, underscoring the longstanding interest in the privacy of communications and records. Even those early Americans who conceived and ratified the constitutional protection against self-incrimination lived through an era of ciphers and codes spawned by the Revolutionary War.
Now, the steady evolution of electronic privacy measures is leading us into new territory and new interpretations of that constitutional protection.
In Doe v. United States,[FOOTNOTE 1] the U.S. Supreme Court decided that a grand jury subpoena compelling petitioner to sign a dozen bank disclosure forms for any records of accounts in three different institutions did not violate the Fifth Amendment. Although conceding "acts that imply assertions of facts" are testimonial, Justice Harry Blackmun concluded that the forms were not communicative since they did not refer to specific accounts, confirm their existence or demonstrate control by petitioner -- in other words, no authentication.
The Court also pointed out that the consent form did not represent the contents of petitioner's mind. They analogized the disclosure document to a key used to open a strongbox as opposed to a combination to a wall safe.
The wall safe has been the classic repository of people's most private and treasured assets and documents. And as the forerunner to the password protected hard drive, it offers a glimpse of where lines might be drawn in assigning the Fifth Amendment privilege. ...much more to go... by Ken Strutin, New York Law Journal
March 14, 2008
Is the Fifth Amendment Password Protected?
February 23, 2008
CA- Court Cannot Require Parolee to Waive Therapist-Patient Privilege
2-22-2008 California:
A parolee cannot be required to waive the privilege for communications with his private therapist in the absence of evidence that he is seeking therapy for some “nefarious” reason, the Court of Appeal for this district has ruled.
Div. Six Wednesday affirmed a Santa Barbara Superior Court judge’s ruling striking down a probation officer’s order that Reynaldo Corona either sign a waiver of therapist-patient privilege or stop seeing the therapist he retained after serving a sentence of more than three years in prison for molesting his two stepdaughters.
Corona was released on parole in May 2006, and directed to comply with various conditions, including participation in treatment as ordered by his parole officer. In his petition for writ of habeas corpus, Corona contended that he had been attending monthly therapy sessions in accordance with his parole agent’s order but had, at his own expense, undertaken private counseling with a specialist in sex offenses “to understand [his] offense and to eliminate any possibility of future difficulties.”
The state responded that while Corona had given the required waiver of privilege with regard to his state-paid group therapy, he should be required to sign a waiver with regard to his private sessions as well, since he might “choose to reveal information in his private therapy which he withholds from his group therapist.
By way of example, lawyers for the state cited the possibility that a “high risk” offender such as Carona might reveal to his private therapist that he had viewed pornography or visited a playground, either of which would violate parole conditions and indicate a possibility of re-offense.
Superior Court Judge Joseph T. Lodge disagreed, ruling that the condition was unreasonable and granting a writ of habeas corpus.
Justice Paul Coffee, writing for the Court of Appeal, cited In re Stevens (2004) 119 Cal.App.4th 1228, in which the court held that a convicted sex offender could not, as a condition of parole, be barred from using a computer where the offense did not involve computers.
“Here, Corona was convicted of committing a lewd act upon a child. He entered into private psychotherapy, in addition to the therapy required by the parole authority,” he wrote. “This would seem to be something for which he should be credited, rather than penalized. The People have not identified a nefarious reason for Corona’s decision to engage in additional therapy. “
He went on to say:
“We find disturbing the People’s assertion that it may revoke parole if Corona refuses to sign the waiver,” the justice said. “This implicates his constitutional right to due process....Before parole may be revoked, there must be an appropriate determination that the individual has breached a parole condition.”
Coffee also noted that under California law, Corona’s private therapist would be required to disclose any information causing the therapist to conclude that he presents a danger to another person.
The case is In re Corona, 08 S.O.S. 1190. ..more.. by KENNETH OFGANG, Staff Writer
See Karen Franklin, In the News:
Do sex offenders have right to confidential therapy?
