This has been an interesting discussion on the IPList. Here's one of the more detailed answers:
As a former Assistant U.S. Attorney, allow me to comment.
Information may be obtained by the government from a person in one of four ways: (1) it is voluntarily provided; (2) by regulation in a heavily regulated industry; (3) by subpoena; and (4) by a search and seizure warrant. We are concerned with number 3, the subpoena.
A person can refuse to produce incriminating information in response to a subpoena under the Fifth Amendment. Please note that the password is not protected. If it is written down somewhere, the document on which it is written is not protected by the privilege. The *act* of producing the document or the password itself *may* be privileged, if such an act is itself incriminating. For example, if the password was used in a crime, and the fact that you have the password in your possession tends to show that you participated or conspired in the crime, and then the Fifth Amendment privilege is applicable to protect you from implicating yourself in the crime. The Government *can* immunize you to the limited extent necessary to obtain the password - it cannot then use the fact that it got the password from you in order to prosecute you. This is known as "Doe" immunity, and there is an extensive line of cases that has developed in this area. Webster Hubbell, the former Associate Attorney General who was convicted of tax fraud by Ken Starr's IC Office, eventually had his conviction vacated because Starr's legal team failed to follow the rules when they obtained, from him (by subpoena), his tax records.
If the government is not investigating a crime, then it may use an administrative or civil subpoena to try and get the password. If the witness invokes the Fifth Amendment, then the government can immunize that person and compel production.
The second point, above, concerning a regulated industry, applies to such areas as Medicare and Medicaid, Government contractors for procurement matters, industrial health and safety mattes, environmental concerns, etc. The same analysis as above would apply.
Border searches are a different animal, since the government has the right to inspect items crossing the border without a warrant. However, if the password is in the traveler's head, then that is not an "item" that can be inspected at the border. The information on the laptop might very well be such an item, however, and if the only way to convince the government to allow you to cross the border is to show the border guards what is on the laptop, then the traveler might very well face the choice of turning on the laptop and opening files,, using the password, or not crossing the border. I do not believe that, even here, the traveler would have to produce the password itself.
Andrew Grosso, Esq.
Andrew Grosso & Associates
1250 Connecticut Avenue, NW, Suite 200
Washington, D.C. 20036
(202) 261-3593
Email: Agrosso@acm.org
Web Site: www.GrossoLaw.com
