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The 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

by harryh 10y ago

The 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 ago
No, 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 ago
  That's a characterization I can agree with. But that transformation still isn't, in my mind, testimony. It's an action.
  - marcosdumay 10y ago
    How can disclosing some data that is a function of information you have on your mind not be testimony?
    - harryh 10y ago
      Because 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 ago
        True. 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.
        tripzilch 10y ago
        You know what would be handy? If you were to codify these reasons and purposes unambiguously in a single, agreed upon, authoritative place (say, a law book or something), so you don't need to divine meaning from ancient texts and have the same silly discussion every time the subject comes up. Take a look at the legal system of just about any non-English speaking country, to see how this could possibly work. (Admittedly, it makes for great film scripts and courtroom scenes, which are valuable and important export-products of the US, but having clearly defined and agreed upon laws and rules is kind of important too)

by harryh 10y ago

The 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 ago

No, 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 ago
That's a characterization I can agree with. But that transformation still isn't, in my mind, testimony. It's an action.
- marcosdumay 10y ago
  How can disclosing some data that is a function of information you have on your mind not be testimony?
  - harryh 10y ago
    Because 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 ago
        True. 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.
      - tripzilch 10y ago
        You know what would be handy? If you were to codify these reasons and purposes unambiguously in a single, agreed upon, authoritative place (say, a law book or something), so you don't need to divine meaning from ancient texts and have the same silly discussion every time the subject comes up. Take a look at the legal system of just about any non-English speaking country, to see how this could possibly work. (Admittedly, it makes for great film scripts and courtroom scenes, which are valuable and important export-products of the US, but having clearly defined and agreed upon laws and rules is kind of important too)