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Your comparison between decrypting a file and locating a body neatly demonstrates the conflict at the heart of this case. The conflict is formally known as the
by harryh 10y ago
Your comparison between decrypting a file and locating a body neatly demonstrates the conflict at the heart of this case. The conflict is formally known as the "foregone conclusion doctrine."
There was an excellent discussion of this case and the principles behind this doctrine in the Washington Post last year:
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/06/07/the-fifth-amendment-limits-on-forced-decryption-and-applying-the-foregone-conclusion-doctrine/ https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...
Orin Kerr does an excellent job explaining why he thinks the doctrine applies to decrypting files. You might enjoy reading it.
The appropriate analogy to this case is not "until he shows hidden body to the police" but "until he opens the door to his garage where they have reason to believe there is a body".
- marcosdumay 10y agoYet another article assuming that telling a decryption key is the same as delivering a document you possess.
- harryh 10y agoThe defendant in question here is not being asked to tell anyone their encryption key. They are, in fact, being asked to deliver a collection of documents they possess.
- dragonwriter 10y agoNo, they are being asked to transform a collection of documents they possess, using information they allegedly possess in their mind about those documents, and deliver the product of that transformation.
- harryh 10y agoThat's a characterization I can agree with. But that transformation still isn't, in my mind, testimony. It's an action.
- marcosdumay 10y agoHow can disclosing some data that is a function of information you have on your mind not be testimony?
- harryh 10y agoBecause it isn't revealing information that only exists in your mind. Keep in mind the reason the 5th Amendment exists: the prevent the government from having an incentive to coerce false testimony through torture. An evil government could coerce someone to falsely say "I did it!" An evil government cannot coerce someone to falsely type a password into a terminal to decrypt files with incriminating evidence. Because if it's false that evidence simply won't exist.
- dragonwriter 10y ago> Keep in mind the reason the 5th Amendment exists: the prevent the government from having an incentive to coerce false testimony through torture. Thats not the sole purpose of the self-incrimination protection (which is, also, far too focussed in it's protections to meaningfully effect that end, since historically false testimony coerced through torture was very often sought from people other than the person it was used against.) > An evil government cannot coerce someone to falsely type a password into a terminal to decrypt files with incriminating evidence. Sure they can, or, rather, if they claim to know already what is on the drive and reject any decryption which does not match their claimed knowledge, they can punish someone for non-compliance until they either tire of punishment or the target somehow manages to produce a result that matches the expectations.
- harryh 10y agoTrue. It's also to prevent someone from ever being put in the position of having to choose between lying and self incriminating. But again, that doesn't apply in this case. or the target somehow manages to produce a result that matches the expectations. This is an impossible end state. You might have a point if the password was a one time pad or something like that but that's not the case for the case in question.