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Perhaps, but the judge can only make judgements based on the arguments presented. If the defendant wanted to argue that he no longer remembered the password (b

by timv 10y ago

Perhaps, but the judge can only make judgements based on the arguments presented. If the defendant wanted to argue that he no longer remembered the password (but would be willing to decrypt the drive if he could), then that's something that the judge would consider. But a judge can't (and won't) simply say "Oh, maybe he hasn't complied because he just forgot the password. I'm going to let him off"

michaelmrose 10y ago
Its literally impossible to prove someone has or hasn't forgotten something. You shouldn't be able to jail someone indefinitely for not producing something you can't prove exists.
- superflyguy 10y ago
  That's not something that's going to trouble US authorities given that the US invasion of Iraq was alleged to have been because the Iraqi leadership couldn't demonstrate that there were no "weapons of mass destruction" hidden somewhere in the country.
- timv 10y ago
  Yes, but that's fairly well tested ground and isn't unique to this case. Witnesses (in the sense of being called to that stand in a courtroom) are frequently asked to tell the court what they saw/heard/did, or from where/whom they received information. Refusing to answer may get them pulled up on contempt charges, and if they claim not to remember then the judge needs to decide whether they are lying. Given the impossibility of proving (in an absolute sense) that the witness does in fact remember (at that exact moment), it's a game that witnesses are likely to get away with (hence the standard "I don't recall" answer from politicians and beuracrats), but it's not a universal solution to the "I don't want to tell you" scenario.
  - michaelmrose 10y ago
    I think that the difference is that people are generally good at remembering the details that judges are normally interested in. People are notoriously bad at remembering passwords.

by timv 10y ago

michaelmrose 10y ago

Its literally impossible to prove someone has or hasn't forgotten something. You shouldn't be able to jail someone indefinitely for not producing something you can't prove exists.

superflyguy 10y ago
That's not something that's going to trouble US authorities given that the US invasion of Iraq was alleged to have been because the Iraqi leadership couldn't demonstrate that there were no "weapons of mass destruction" hidden somewhere in the country.
timv 10y ago
Yes, but that's fairly well tested ground and isn't unique to this case. Witnesses (in the sense of being called to that stand in a courtroom) are frequently asked to tell the court what they saw/heard/did, or from where/whom they received information. Refusing to answer may get them pulled up on contempt charges, and if they claim not to remember then the judge needs to decide whether they are lying. Given the impossibility of proving (in an absolute sense) that the witness does in fact remember (at that exact moment), it's a game that witnesses are likely to get away with (hence the standard "I don't recall" answer from politicians and beuracrats), but it's not a universal solution to the "I don't want to tell you" scenario.
- michaelmrose 10y ago
  I think that the difference is that people are generally good at remembering the details that judges are normally interested in. People are notoriously bad at remembering passwords.