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Know Your Rights 2011

Know Your Rights 2011

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Published by jdfogg
Source: https://www.eff.org/files/EFF_Know_Your_Rights_2011.pdf
Source: https://www.eff.org/files/EFF_Know_Your_Rights_2011.pdf

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Published by: jdfogg on Jul 07, 2011
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Know Your Rights!
By Hanni Fakhoury, EFF Staff Attorney June 2011
ELECTRONIC FRONTIER FOUNDATION
eff.org 
 
 1
ELECTRONIC FRONTIER FOUNDATIONEFF.ORG
Know Your Rights!
Your computer, your phone, and your other digital devices hold vast amounts o personal in-ormation about you and your amily. Tis is sensitive data that’s worth protecting rom pryingeyes — including those o the government.Te Fourth Amendment to the Constitution protects you rom unreasonable governmentsearches and seizures, and this protection extends to your computer and portable devices. Buthow does this work in the real world? What should you do i the police or other law enorce-ment ocers show up at your door and want to search your computer?EFF has designed this guide to help you understand your rights i ocers try to search thedata stored on your computer or portable electronic device, or seize it or urther examinationsomewhere else.Because anything you say can be used against you in a criminal or civil case, beore speaking toany law enorcement ocial, you should consult with an attorney.
Q:
 
Can the police enter my home to search my computer or portable device, like alaptop or cell phone?A:
 
No,
in most instances, unless they have a warrant. But there are two major excep-tions: (1) you consent to the search;
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or (2) the police have probable cause to believethere is incriminating evidence on the computer that is under immediate threat o destruction.
2
Q:
 
What if the police have a search warrant to enter my home, but not to searchmy computer? Can they search it then?A:
 
No,
typically, because a search warrant only allows the police to search the area oritems described in the warrant.
3
But i the warrant authorizes the police to searchor evidence o a particular crime, and such evidence is likely to be ound on yourcomputer, some courts have allowed the police to search the computer without a war-rant.
4
Additionally, while the police are searching your home, i they observe some-thing in plain view on the computer that is suspicious or incriminating, they maytake it or urther examination and can rely on their observations to later get a searchwarrant.
5
And o course, i you consent, any search o your computer is permissible.
Q:
 
Can my roommate/guest/spouse/partner allow the police access to mycomputer?A:
 
Maybe.
A third party can consent to a search as long as the ocers reasonably be-lieve the third person has control over the thing to be searched.
6
However, the policecannot search i one person with control (or example a spouse) consents, but anotherindividual (the other spouse) with control does not.
7
One court, however, has saidthat this rule applies only to a residence, and not personal property, such as a harddrive placed into someone else’s computer.
8
 
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ELECTRONIC FRONTIER FOUNDATIONEFF.ORG
Q:
 
What if the police want to search my computer, but I’m not the subject of their investi-gation?A:
It typically does not matter whether the police are investigating you, or think there is evi-dence they want to use against someone else located on your computer. I they have a war-rant, you consent to the search, or they think there is something incriminating on yourcomputer that may be immediately destroyed, the police can search it. Regardless o whetheryou’re the subject o an investigation, you can always seek the assistance o a lawyer.
Q:
 
Can I see the warrant?A:
 
Yes.
Te police must take the warrant with them when executing it and give you a copy o it.
9
 Tey must also knock and announce their entry beore entering your home
10
and must servethe warrant during the day in most circumstances.
11
Q:
 
Can the police take my computer with them and search it somewhere else?A:
 
Yes.
As long as the police have a warrant, they can seize the computer and take it somewhereelse to search it more thoroughly. As part o that inspection, the police may make a copy o media or other les stored on your computer.
12
Q:
 
Do I have to cooperate with them when they are searching?A:
 
No,
you do not have to help the police conduct the search. But
you should not physically in-terfere with them, obstruct the search, or try to destroy evidence
, since that can lead toyour arrest. Tis is true even i the police don’t have a warrant and you do not consent to thesearch, but the police insist on searching anyway. In that instance, do not interere but writedown the names and badge numbers o the ocers and immediately call a lawyer.
Q: Do I have to answer their questions while they are searching my home without a war-rant?A:
 
No,
you do not have to answer any questions. In act, because anything you say can be usedagainst you and other individuals, it is best to say nothing at all until you have a chance totalk to a lawyer. However, i you do decide to answer questions, be sure to tell the truth. Itis a crime to lie to a police ocer and you may nd yoursel in more trouble or lying to lawenorcement than or whatever it was they wanted on your computer.
13
Q: If the police ask for my encryption keys or passwords, do I have to turn them over?A:
 
No.
Te police can’t orce you to divulge anything. However, a judge or a grand jury may beable to. Te Fith Amendment protects you rom being orced to give the government sel-incriminating testimony. I turning over an encryption key or password triggers this right,not even a court can orce you to divulge the inormation. But whether that right is triggeredis a dicult question to answer. I turning over an encryption key or password will reveal tothe government inormation it does not have (such as demonstrating that you have controlover les on a computer), there is a strong argument that the Fith Amendment protectsyou.
14
I, however, turning over passwords and encryption keys will not incriminate you, thenthe Fith Amendment does not protect you. Moreover, even i you have a Fith Amendmentright that protects your encryption keys or passwords, a grand jury or judge may still order

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