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The judge's ruling says essentially what you're saying... there's enough evidence already that he considers it a foregone conclusion that there is child porn o
by 300bps 9y ago
The judge's ruling says essentially what you're saying... there's enough evidence already that he considers it a foregone conclusion that there is child porn on the encrypted hard disk.
The only problem I have with this argument is that if it is such compelling evidence why not send the case to trial and let a jury decide?
- colejohnson66 9y agoPrecedent
- harryh 9y agoYou have misunderstood what "foregone conclusion" means in this case. It is not a foregone conclusion that this is child porn on the disks. It is a foregone conclusion that there is something on the disks and that something is encrypted with a password known by the defendant. See 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...
- 300bps 9y agoYou're mistaken. Source: https://arstechnica.com/tech-policy/2017/03/man-jailed-indefinitely-for-refusing-to-decrypt-hard-drives-loses-appeal/ https://arstechnica.com/tech-policy/2017/03/man-jailed-indef...
- harryh 9y agoThe author of the arstechnica piece (who, unlike the author of the Washington Post piece, is not a laywer) hasn't really explained things well. It's worth reading the actual decision from the court[1]. A relavent paragraph: In Fisher, however, the Court also articulated the “foregone conclusion” rule, which acts as an exception to the otherwise applicable act-of-production doctrine. Fisher, 425 U.S. at 411. Under this rule, the Fifth Amendment does not protect an act of production when any potentially testimonial component of the act of production—such as the existence, custody, and authenticity of evidence—is a “foregone conclusion” that “adds little or nothing to the sum total of the Government’s information.” Id. For the rule to apply, the Government must be able to “describe with reasonable particularity” the documents or evidence it seeks to compel. Hubbell, 530 U.S. at 30. Note that the issue with this question is the "existence, custody, and authenticity" of the evidence not its actual contents. 1. https://arstechnica.com/wp-content/uploads/2017/03/rawlsopinion.pdf https://arstechnica.com/wp-content/uploads/2017/03/rawlsopin...
- tptacek 9y agoBecause you can only send this case to a jury once without triggering double jeopardy, so the state has an interest in sending the strongest case it reasonably can.