Re: 5th protect password?

At 10:03 PM 4/20/96 -0700, Steve Reid wrote:
>> >   A defendant can be compelled to produce material evidence that
>> >   is incriminating.  Fingerprints, blood samples, voice
>> >   exemplars, handwriting specimens, or other items of physical
>> >   evidence may be extracted from a defendant against his will.
>
>> As you might expect, I see a problem (and a pattern!) with even these 
>> examples.  Notice that with the possible exception of "handwriting 
>> specimens", the examples above all represent pieces of evidence whose 
>> utility was only made technologically possible by developments done more 
>> than a century after the writing of the Constitution.  Fingerprints have 
>
>I think you missed the main pattern... When a suspect is required to
>provide fingerprints, voice, blood and/or handwriting samples, those
>things are used exclusively for _identification_.

Is this "a distinction without a difference"???  

>
>The only exceptions I can think of are when blood, breath and urine
>samples are taken from a suspect to detect certain chemicials in the body. 
>But, AFAIK, those exceptions are entirely the product of the recent war on
>drugs. 

This is odd.  By mentioning those exceptions you just destroyed your 
argument.  If you were trying to claim that "identification"-intended 
evidence was not protected by the 5th amendment, mentioning samples taken to 
detect drugs are obviously not of this type.  The implication is that they 
represent an entirely different class of "non-violations" of the 5th 
amendment.  How many other non-violations are you going to be able to pull 
out of that hat, along with that rabbit?

This, as you might expect, is getting hilarious.  Somehow, I think 
everything that might be construed as a violation of the 5th is going to be 
called "a special case" or "an exception" by those who see no problem, or at 
least those who 
are not willing to admit to a problem. 

What's so hard about admitting that the powers-that-be in this country today 
chafe at the protections guaranteed in the Bill of Rights, and try to do 
everything in their power to minimize or eliminate them?  It's certainly not 
an unexpected possibility, and in fact most people probably recognize that 
it is unavoidable.  Once you are dragged, kicking and screaming, to an 
admission that this kind of thing actually happens, your next task is to 
identify current policy practices which are the product of this kind of 
misinterpretation.


See, my argument is that there is a pattern of violation of the 5th 
amendment, and glory be, you provide yet more ammunition for my claims.  I 
think you need to go back, try to figure out the originally intended meaning 
of the 5th, and differentiate it from the subsequent 210+ years of wishful 
thinking on the part of the government.  

Jim Bell
jimbell@pacifier.com

> >I think you missed the main pattern... When a suspect is required to
> >provide fingerprints, voice, blood and/or handwriting samples, those
> >things are used exclusively for _identification_.
> >The only exceptions I can think of are when blood, breath and urine
> >samples are taken from a suspect to detect certain chemicials in the body. 
> >But, AFAIK, those exceptions are entirely the product of the recent war on
> >drugs. 

> This is odd.  By mentioning those exceptions you just destroyed your 
> argument.  If you were trying to claim that "identification"-intended 
> evidence was not protected by the 5th amendment, mentioning samples taken to 
> detect drugs are obviously not of this type.  The implication is that they 
[SNIP]
> This, as you might expect, is getting hilarious.  Somehow, I think 
> everything that might be construed as a violation of the 5th is going to be 
> called "a special case" or "an exception" by those who see no problem, or at 
> least those who are not willing to admit to a problem. 

No need to be so defensive, Mr. Bell... I didn't say that samples used to
detect drugs are OK under the constitution. I just said that, IMNALO,
samples taken for identification have always been okay. The samples taken
to detect unauthorized molecules are the exception to the identification
rule I noted. I do agree that requiring people to provide such samples to
detect illegal substances (as I said, a recent development) is wrong. 

I wasn't trying to score points for either side of the debate, I was just
pointing out that _before_the_war_on_drugs_, the samples listed in the
previous post were used exclusively for identification.

Handwriting, fingerprints, and voice (not to mention name and appearance)
are still used exclusively for idenitification. Breath and urine (items
that I added when I mentioned the war on drugs) are used exclusively for
detecting chemicals (although I think DNA can be found in urine). 

Just my two bits. That's all I'm willing to spend on this discussion. 
Only time will tell whether or not the courts will force people to provide
encryption keys. 


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