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This case is interesting. If I'm reading https://en.m.wikipedia.org/wiki/United_States_v._Hubbell https://en.m.wikipedia.org/wiki/United_States_v._Hubbell corre

This case is interesting. If I'm reading https://en.m.wikipedia.org/wiki/United_States_v._Hubbell https://en.m.wikipedia.org/wiki/United_States_v._Hubbell correctly, the fifth amendment only applies if "they don't know what they're looking for." In this case, because there is (enough) evidence of CP on his computer, they are subpoenaing him to produce the unencrypted drives. In some sense, they're not asking for a password - they're asking for the drive contents, which they know to at least partially be illegal. IANAL though. Assuming that interpretation of the 5th is correct, subpoenas can easily be used to access encrypted information. I just hope the judges that decide when to grant subpoenas know where that line is.

ethbro 10y ago
It is amazing that anything produced would be admissible. I don't see how this is different than having circumstantial evidence that someone is a murderer, so ordering them to lead you to where they buried the body.
- NightMKoder 10y ago
  I think they key is that the evidence is beyond circumstantial - they have concrete evidence that he uploaded files that were CP from that computer. It's a bit worrying why that isn't circumstantial (hacked computers aren't a thing?), but maybe the standard for issuing a subpoena is lower than guilt but higher than circumstantial. Sounds like the only right answer for your password is "I do not recall"
  - RUG3Y 10y ago
    This might be a stupid thought but if they already have enough concrete evidence against the suspect, why do they require the contents of the drive?
    - NightMKoder 10y ago
      My bet would be to up the sentence. Go from 2 counts of CP to 200 - 5 years in jail to life sentence.
      - naasking 10y ago
        But then that seems to undermine the whole argument, because they actually are requiring the suspect to incriminate himself.
        Terribledactyl 10y ago
        Each photo in possession is a separate crime and they, presumably, know about and want a single photo. However different legal doctrines say, if they find more in the normal course of events, they are now admissible and can be used to create new charges.
        naasking 10y ago
        > However different legal doctrines say, if they find more in the normal course of events, they are now admissible and can be used to create new charges. Sure, but that's not the case here. They apparently already know he possesses a certain number of such photos, and now are now trying to compel him to incriminate himself further.
      - imh 10y ago
        Doesn't that bring the question back to the 5th amendment on the other 198 counts?
    - SolarNet 10y ago
      My guess would be that they suspect him of producing child porn, and they want the those files so they can add it to the list of hashes (they know there were hashes of child porn sent to his computer, but they don't know which hashes/files were child porn that he sent that was originally produced by him) and/or they want to get at evidence he likely has on other child porn producers.
    - BearGoesChirp 10y ago
      I see two possibilities. 1. They don't have enough evidence to convict, and know it, and thus are waiting for this evidence. The problem here being a question of how are they sure enough of guilt to hold him in jail for so long. 2. They do have enough evidence to convict, but they rather have a precedent destroying (or weakening) encryption. This would be like the San Bernardino iPhone case. I'm not sure which possibility is worse.

ethbro 10y ago

It is amazing that anything produced would be admissible. I don't see how this is different than having circumstantial evidence that someone is a murderer, so ordering them to lead you to where they buried the body.

NightMKoder 10y ago
I think they key is that the evidence is beyond circumstantial - they have concrete evidence that he uploaded files that were CP from that computer. It's a bit worrying why that isn't circumstantial (hacked computers aren't a thing?), but maybe the standard for issuing a subpoena is lower than guilt but higher than circumstantial. Sounds like the only right answer for your password is "I do not recall"
- RUG3Y 10y ago
  This might be a stupid thought but if they already have enough concrete evidence against the suspect, why do they require the contents of the drive?
  - NightMKoder 10y ago
    My bet would be to up the sentence. Go from 2 counts of CP to 200 - 5 years in jail to life sentence.
    - naasking 10y ago
      But then that seems to undermine the whole argument, because they actually are requiring the suspect to incriminate himself.
      - Terribledactyl 10y ago
        Each photo in possession is a separate crime and they, presumably, know about and want a single photo. However different legal doctrines say, if they find more in the normal course of events, they are now admissible and can be used to create new charges.
        naasking 10y ago
        > However different legal doctrines say, if they find more in the normal course of events, they are now admissible and can be used to create new charges. Sure, but that's not the case here. They apparently already know he possesses a certain number of such photos, and now are now trying to compel him to incriminate himself further.
    - imh 10y ago
      Doesn't that bring the question back to the 5th amendment on the other 198 counts?
  - SolarNet 10y ago
    My guess would be that they suspect him of producing child porn, and they want the those files so they can add it to the list of hashes (they know there were hashes of child porn sent to his computer, but they don't know which hashes/files were child porn that he sent that was originally produced by him) and/or they want to get at evidence he likely has on other child porn producers.
  - BearGoesChirp 10y ago
    I see two possibilities. 1. They don't have enough evidence to convict, and know it, and thus are waiting for this evidence. The problem here being a question of how are they sure enough of guilt to hold him in jail for so long. 2. They do have enough evidence to convict, but they rather have a precedent destroying (or weakening) encryption. This would be like the San Bernardino iPhone case. I'm not sure which possibility is worse.