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Am I correctly understanding this decision to mean that, if the government already knows there's incriminating data on the drive, a compelled decryption would n

• jrockway 15y ago
  I take a slightly different view in that one should never have to cooperate in any way in his own prosecution. Except for computers, nothing else is mandatory; if you refuse to be arrested, the cops will taze you (bro), if you go on a hunger strike in prison, the guards will tie you down and feed you through a tube, and so on. With all that as context, it seems absurd that you should have to type your innermost thoughts into a laptop so that the government can send you to jail.
  • cstejerean 15y ago
    If you consider "resisting arrest => getting tazed", and "hunger strike => force feeding" as acceptable consequences for refusing to cooperate then "refuse to provide password => held in contempt of court" is always going to be an option for you.
    • true_religion 15y ago
      In the first two examples, they gain your cooperation without your will. When you are held in contempt, you still have to agree to cooperate to escape it.
      • rdtsc 15y ago
        worst case => you forget your password, now you can just be held in jail for life if judges don't believe you.
  • rosser 15y ago
    There's a vast difference between not cooperating and actively impeding. Destruction of inculpatory evidence, for example, is a crime, even if, by some definitions, destroying the evidence could be termed "not cooperating." That's why, IMO, the court makes a distinction between compulsory decryption of a drive which the prosecution already knows to contain incriminating data (which isn't testimonial, and hence not subject to 5th Amendment protection), versus being compelled to decrypt a drive because the government thinks it's likely to find incriminating evidence on it. Actively impeding the prosecution, in the form of refusing to decrypt a drive known to contain inculpatory evidence, is in many ways tantamount to destroying that evidence. (Assuming, of course, reasonably secure encryption technology, &c.) You're not incriminating yourself by giving them the plaintext; they already know you have it, whether through confession, third party testimony, or some other means. What the court is saying here, OTOH, is that it would be testimonial, and hence subject to 5th Amendment protection, for you to decrypt a drive the prosecution merely suspects to contain inculpatory evidence, however strong their argument for suspecting such evidence to exist (and they'll have much better arguments than, "Well, drive is big enough to hold millions of files..."). If they were to find any such evidence, they'd have found it through compelling you to provide it to them, and that's the thing they're saying is counter to the 5th Amendment — that, in providing them with evidence they didn't already specifically know to exist, you've incriminated yourself.
    • rurounijones 15y ago
      Honest question here: From a legal standpoint how can the" prosecution already knows [the harddisk] to contain incriminating data" if the drive is encrypted? Are eyewitnesses saying "I saw him type the death list into his laptop" good enough? What is the criteria to meet that point?
      • elithrar 15y ago
        > Honest question here: From a legal standpoint how can the" prosecution already knows [the harddisk] to contain incriminating data" if the drive is encrypted? In many cases they can have intercepts, or bugs (cameras), but they are often not enough to form a water-tight case. They can therefore "know" you have incriminating data on your drive (or at least they will argue that point).