I am not sure you can be compelled to remember something you forgot. And nobody can tell you if you remember or not, or if you will ever remember again.
So no, some judge may try to hold you in contempt of court, and it may work for a while, but at some point -- if you have a good lawyer it will turn in to a civil rights issue.
Also, you could plead the 5th as well.
NOTE: I am not a lawyer, and these are just my opinions on this matter.
Courts have ruled that providing a password to decrypt something is not in itself testimony and isn't protected by the 5th amendment.
Judges can certainly hold you in court indefinitely on a contempt of court charge as well. Considering the nature of the charges that this typically comes up in (see Francis Rawls) I wouldn't count on trying to make it a civil rights issue doing much in your favor.
It’s important to point out in this case the stated reason for the contempt charge is the “foregone conclusion” that there IS child porn on those encrypted drives, not the mere existence of encrypted drives with what could contain anything.
Police can’t compel you to provide a combination to a lock (encryption key) to go on a fishing expedition, but if they KNOW the safe contains illegal contents then you can be held in contempt for not providing it (they already know it’s in there).
Without spending forever delving into the case record I can’t comment on whether they should really have a high enough certainty that the drive does contain CP, but the argument in this specific case does match our interpretation of the 5th amendment when it comes to physical locks.
This is a good argument WHY encryption is important, however. Backdooring crypto would allow law enforcement to fish through everything they want with wanton disregard for the fifth amendment, instead of needing to build up a suitable case for illegal acts being committed with standard investigatory techniques. This right here is how the system SHOULD work.
If the prosecution has such convincing evidence that the drives contain the images they say, then why do they need to compel the defendant to do anything at all? If it's such a foregone conclusion, why not just go ahead and try him on the child porn charge?
Dunno, I’m just an armchair lawyer who watches too many Leonard French videos. Like I said in my original comment, I haven’t read the case record in detail, nor am I familiar enough with the Federal Rules or Criminal Procedure to know if there’s some evidentiary requirement they cannot meet without the contents of the drive or whatever.
I’m guessing it’s because they are operating off testimony of a witness (defendants sister) claiming she was shown the alleged images, and since they weren’t on the unencrypted internal drive they MUST be on the encrypted external drives. That combined with the knowledge that these files were in fact purportedly known to be downloaded via his internet connection is enough for something, but all they have without the drives is hearsay, hence the compulsion to decrypt then?
Personally I think in this instance with recent rulings that an individual cannot be identified by an IP address and a single witness that there isn’t enough to KNOW anything, otherwise I could wardrive around, download a bunch of CP on somebodies connection and say I saw them looking at it through a window or something.
All I know is that we do have precedent for this in the physical world, so it’s not a logical leap to require disclosure of cryptographic keys when we KNOW what they unlock.
I just don't buy that argument. If the evidence is mere hearsay, then how could it be good enough for compelling him to testify against himself?
It isn't hearsay in this case though. Hearsay is when
Alice testifies that Bob told her he witnessed Charlie viewing child porn. Generally it should not be considered as fact that Bob witnessed this.
It's not hearsay if Alice testifies that she witnessed Charlie viewing child porn, which seems to be the case here. This kind of testimony is direct evidence.
Then there is the circumstantial evidence: The prosecution can show these encrypted drives exist, belong to the defendant, that he knows how to decrypt them and refused, etc.
I just don't see how it's reasonable to claim that isn't good enough for a jury to decide who to believe. They should just try him, or let him go.
This situation also has an analogy in the physical world: if the owner of the key is dead or otherwise non-coercible, that's effectively the same as a physical document being destroyed.
So no, some judge may try to hold you in contempt of court, and it may work for a while, but at some point -- if you have a good lawyer it will turn in to a civil rights issue.
Also, you could plead the 5th as well.
NOTE: I am not a lawyer, and these are just my opinions on this matter.