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Technically, the defendant is the one going to the Supreme Court. Of course they somewhat forced his hand by putting him in jail. IANAL, but probably he could h
by jo909 9y ago
Technically, the defendant is the one going to the Supreme Court. Of course they somewhat forced his hand by putting him in jail. IANAL, but probably he could have abandoned his fifth amendment defense strategy much earlier, which is the only thing currently before the Supreme Court, go back to the original judge and raise the "I forgot the password" defense there. Under the assumption that he could have done that, and again IANAL so I'm sorry if that is wrong, he is the one forcing the issue at the Supreme Court.
Of course the prosecution has nothing to loose here, so why would they do anything (if they could, I don't believe they play any role in this part), and the judge that made the contempt of court ruling that is the basis of all of this is unlikely to just give in and admit he was wrong, and also probably pretty interested to get a final judgment on what he believes is his legal right to do.
And you make it sound like getting the highest courts opinion is a bad thing. Either way, then we know, and I'm glad I'm not the one that has to wait it out in jail.
- alethiophile 9y agoI am also not a lawyer, but if the government really just wanted their conviction of this one guy, the obvious path seems to be to abandon the court order to decrypt the drive, and just move forward with trial based on the forensic evidence from the system root. Slapping him with contempt on this, and continuing to sweat him out in jail while he files higher and higher appeals, is the government's decision. Getting the Supremes' opinion on this is kind of a superposition of states: if they decide in favor of right-to-encrypt, that's great, as suddenly the government will (presumably) stop using these kinds of court orders; but if they find against, then it's worse than the current uncertain situation, as orders to decrypt will then become an accepted tool. If the Supremes would find in favor of compelled decryption, then I'd prefer it never go to them, and remain in the current legal limbo.
- jo909 9y ago"The government" as such is not involved here. I'm not going to pretend the separation of powers is as clean cut as what one learns in school, but first and foremost this is a ruling of a single and independent judge that the defendant is challenging. I fail to see any motivation for the judge to back down on his contempt of court order. I fail to see any motivation for the prosecution to try to continue the trial faster without the drives (which would be a much weaker case). Just because they are good people and have any problem with somebody they believe to be very guilty sitting in jail? They send people to jail all day long. And I for myself, owner of many encrypted drives, prefer to know and not having to fight that fight myself while sitting in jail.