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Based on previous rulings, the 5th Amendment doesn't apply because the State already has specific knowledge that this guy has child porn on an encrypted drive,
by rosser 13y ago
Based on previous rulings, the 5th Amendment doesn't apply because the State already has specific knowledge that this guy has child porn on an encrypted drive, through other means. That being the case, the act of decrypting the drive is no longer testimonial, as, by itself, it does not implicate him.
If they merely believed really, really strongly that he has CP on an encrypted drive, then compelling its decryption would be testimonial, because the State would have knowledge (namely, that he possesses child porn) after the act of decryption that they did not have before it. That makes the act of decryption, itself, testimonial, and subject to 5th Amendment protection.
EDIT: as has been noted else-thread, however, Wisconsin is in a different Federal Circuit than the aforementioned previous rulings, and so isn't bound by them.
- cjhopman 13y agoMy understanding is not that they have good evidence that there is CP on the encrypted drive, but rather that they have good evidence that the drive belongs to the guy and that he can decrypt it/has access to/knowledge of its contents. The idea about not having to give up a combination/password is that by doing so you would essentially be admitting ownership/access/knowledge about the contents that were protected by that combination/password.
- mikeash 13y agoI don't really understand. If the contents of the drive don't implicate him in anything, why do they need him to decrypt it? If they implicate him in something, why doesn't the Fifth Amendment apply? Seems like these are the only two choices.