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Yes, this is the "act of production" privilege. The Fisher decision established that content is not protected as 'testimonial'. "but the Court has never on a
by boredguy8 16y ago
Yes, this is the "act of production" privilege. The Fisher decision established that content is not protected as 'testimonial'.
"but the Court has never on any ground, personal privacy included,
applied the Fifth Amendment to prevent the otherwise proper
acquisition or use of evidence which, in the Court's view, did not
involve compelled testimonial self-incrimination of some sort."
"The taxpayer cannot avoid compliance with the subpoena merely by
asserting that the item of evidence which he is required to pro-
duce contains incriminating writing, whether his own or that of
someone else"
"The existence and location of the papers are a foregone conclu-
sion and the taxpayer adds little or nothing to the sum total of
the Government's information by conceding that he in fact has the
papers. Under these circumstances by enforcement of the summons
'no constitutional rights are touched. The question is not of
testimony but of surrender.'"
Fisher largely overturned the earlier (1886) Boyd decision. The court did not expand the Fisher limits until 2000, when the Hubbell decision expanded the testimonial aspect of production and limited the scope of the "foregone conclusion" rationale. For more on the act of production privilege, see http://www.georgemasonlawreview.org/doc/17-3_Cowen.pdf http://www.georgemasonlawreview.org/doc/17-3_Cowen.pdf
But this all relies on a particularly narrow reading of the role of the password in these questions. You have no right (Boyd being long overturned) to withhold physical evidence that may incriminates you.
Anyway, this is an interesting area of law and definitely worth watching.