[ereyes01]

> The Fifth Amendment gives witnesses a right not to testify against themselves. Rawls argued that producing a password for the hard drives would amount to an admission that he owned the hard drives. But the 3rd Circuit rejected that argument. It held that the government already had ample evidence that Rawls owned the hard drives and knew the passwords required to decrypt them. So ordering Rawls to decrypt the drives wouldn't give the government any information it didn't already have. Of course, the contents of the hard drive might incriminate Rawls, but the contents of the hard drive are not considered testimony for Fifth Amendment purposes.

It sounds like this ruling is more against indefinite detention than a ruling that allows you to invoke the 5th before handing over your passwords. The quoted text above [1] tells me that the courts have thus far not recognized any right to keep your data encrypted against the wishes of law enforcement. Maybe it means they can only lock you up for 18 months, but I don't see how this changes things appreciably. I guess if the crime you're accused of carries a sentence worse than 18 months, it might be worthwhile, but who knows...

[1] https://arstechnica.com/tech-policy/2020/02/man-who-refused-...

[thaumasiotes]

> Rawls argued that producing a password for the hard drives would amount to an admission that he owned the hard drives. But the 3rd Circuit rejected that argument. It held that the government already had ample evidence that Rawls owned the hard drives and knew the passwords required to decrypt them. So ordering Rawls to decrypt the drives wouldn't give the government any information it didn't already have. Of course, the contents of the hard drive might incriminate Rawls, but the contents of the hard drive are not considered testimony for Fifth Amendment purposes.

This would seem to imply that if the government has ample evidence that you murdered someone, they can require you to admit to it in court.

[SpicyLemonZest]

They can't require you to personally admit to it, but if they know about a notebook where you wrote it they can require you to give up the notebook. (The rule makes more sense if you think about it in terms of financial crimes; it'd be hard to ever prosecute someone for fraud if they didn't have to give up their books.)

[belorn]

Using the same logic, they could subpoena the grave that the body is buried in as the existence of such grave is a forgone conclusion (a shovel and dirt found in the car, a hole in the ground must exist) and thus would not be a testimony. The accused in that case is also a witness in that they witnessed the grave where the body rest. If they lead the police to a different hole then analyze of the dirt can prove contempt of the court.

The rule make very little sense. I would not bet in favor of it continuing for long. The whole idea that the prosecutor is only asking for the container and not the content was extremity transparent to begin with, and judges who have rejected that argument have said just that. In that case the conclusion the judges made is that a request for the container (ie the unencrypted device) is the same as a request for the information itself, and thus should be seen as such.

[SpicyLemonZest]

There's no pretense that the prosecutor isn't asking for the content. Of course they are. It's just not a Fifth Amendment violation for the government to look at content you've written, even if that content incriminates you.

[belorn]

Asking an accused to provide that content directly is tantamount to testimony, as the Eleventh Circuit concluded. To quote: "the decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files."

It all comes down to the duck test. Is the request for the decrypted container similar as asking directly for the content to be written down by the accused, or spoken about in the form of a testimony? Does it has the same purpose and the same result?

[dsfyu404ed]

So if they already have a pretty darn good idea you murdered someone and the government asks you where the body is and you refuse to tell them and they lock you up then that's not a 5th amendment violation?

In the hard drive case and the hypothetical body location case the government is trying to compel speech that directly leads to incriminating evidence. That seems like a solidly 5th amendment issue to me.

[manfredo]

> The rule makes more sense if you think about it in terms of financial crimes; it'd be hard to ever prosecute someone for fraud if they didn't have to give up their books.

I don't think these two situations are the same. When you run a business there are legal requirements to retain data, and provide that data when audited. The police telling you to tell them were you placed a notebook doesn't seem like an equivalent situation. And how can the police prove you wrong if you say you forgot where you placed it? In fact this is what the defendant alleges:

> A judge ordered Rawls to decrypt the hard drives. In its recent ruling, the 3rd Circuit Court of Appeals described what happened next. Rawls "stated that he could not remember the passwords necessary to decrypt the hard drives and entered several incorrect passwords during the forensic examination."

https://arstechnica.com/tech-policy/2020/02/man-who-refused-...

[sjy]

> And how can the police prove you wrong if you say you forgot where you placed it?

By producing other evidence that suggests that you’re lying (eg. metadata or witnesses suggesting that you recently entered the correct password). In this case the judge had to reject Rawls’ claim of lost memory in order to find him in contempt. Maybe the judge’s finding of fact was wrong, but that’s not what the case is about now.

[manfredo]

> By producing other evidence that suggests that you’re lying (eg. metadata or witnesses suggesting that you recently entered the correct password).

People have forgotten passwords in a matter of minutes in some cases. Not to mention, this guy has been held in prison for 4 years. Plenty of time to forget a password. Forget the password to an encrypted drive is a life sentence?

[xeromal]

What if you don't give up your books that you're legally required to keep? What happens? How did they get them?

[manfredo]

My point is a company handing over books is not the same situation as the police commanding you to tell them where you put a journal. A company's financial records are something they are specifically required to keep and provide by law. If they don't have their books in their possession then they're in violation of the law. The government doesn't even need any suspicion, any company can be audited.

[tsimionescu]

The GP's point was that, if the bar for the 5th amendment is that you may be required to provide testify against yourself as long as the government already knows the piece you are required to testify about, it's not clear how that wouldn't apply to you being required to admit your guilt when the government has sufficient evidence that you are guilty.

I'd also note that giving the government your books is required by financial laws as a condition do being allowed to do business, it's not testimony or your general obligation of cooperating with an investigation.

[wahern]

Generally speaking, any non-testimonial evidence entered into court must be backed by a witness testifying to the nature, content (e.g. literally reciting the incriminating parts), and origins of the evidence. And that person has to have had a proper relationship to the evidence to do so, which is usually the person with the most direct and close relationship to an item or act. For example, if you want to enter verbal statements into evidence, the best and proper person to testify to them is usually the person who made the statement, not a listener.

Another way to look at it is that the only real evidence in court is witness testimony; everything else is just window dressing. Thus we have the Fifth Amendment: "[no person] shall be compelled in any criminal case to be a witness against himself."

How does that get turned into a rule that a defendant can't be forced to divulge information outside court? Because to be admissible in court such information would normally require the defendant to be a witness. If it's not admissible then there's no legitimate basis for the state to compel an act. That leads to two corollaries: 1) if the person isn't a defendant, or is given immunity, he would never be required to be a witness against himself (just a witness against someone else), and thus the Fifth Amendment isn't implicated; 2) if the evidence obtained from the information would be admissible without the defendant's testimony, the Fifth Amendment likewise isn't implicated.

#2 is the case here. Because the government can already show ownership of the hard drives through other witness testimony (e.g. testimony of a relative, purchase receipts, etc), it would be categorically unnecessary for the defendant to testify in court to the incriminating act of divulging the password. However, if for some reason it later turned out that the government couldn't show ownership independently, then of course the hard drives would be inadmissible; not because of the forced password disclosure, per se, but simply because the defendant himself couldn't be compelled to be a witness to his act of divulging the password--an investigator couldn't testify that the defendant disclosed the password as that would be hearsay.[1] But such a turnaround is rare as a court won't compel disclosure unless it's clear there's ample independent and admissible evidence of ownership.

[1] There are lots of exclusions and exceptions to hearsay, especially regarding defendant admissions, but they're disallowed if they would effectively nullify the spirit of the Fifth Amendment if permitted for compelled acts. If you're a strict textualist, as most conservative-leaning people believe themselves to be, then one would presumably be okay with permitting those exceptions, particularly those exceptions which existed at the time of ratification of the Fifth Amendment.

[throwaway17_17]

I have a very strong suspicion that most of the Circuit courts are not going to follow this analysis. Based on the continual erosion of individual applicability of the 4-6 amendments, I would say the more like argument and opinions will focus on distinguishing these types of cases (forced decryption) from testimonial precedent. They will then proceed to, or try to, align the context with the clearly allowable compelling of DNA, fingerprints, physical appearance and other visual identifiers.

I don’t particularly like that train of thought, but given (for example) the higher court’s willingness for the sentence “I want a lawyer, dawg” to be a request for canine companionship and not one asserting a 6th amendment right to counsel, I don’t think I’m wrong.

[wahern]

Maybe I'm misunderstanding you, but my analysis justifies the legitimacy of forced disclosure, at least in similar situations [EDIT: as I assumed]. And that's exactly why I agree with you that eventually the rule will be firmly established that forced disclosure of passwords is lawful.

I think some courts have been squeamish about forced disclosure, sometimes because they hold a more liberal interpretation of the Fifth Amendment that relies on broader principles, sometimes because the situation is often far more complex and uncertain (if not completely incomparable to the hypothetical context I relied on) and they rightly err on the side of protecting the defendant's rights.

In this [EDIT: hypothetical] case I believe this analysis is the correct one, not just because of the text but also the purpose and history of the Fifth Amendment. It's not the proper vehicle to push other principles and legal theories that would restrict such forced disclosure. I lean rather liberal when it comes to constitutional interpretation, but at the same time rights built on sand aren't rights you can rely on. The law in this area seems muddy and precarious precisely because the liberal narrative is too incoherent. (Note: The liberal narrative in this case--that forced disclosure of a password is categorically barred, notwithstanding the intricacies of the rules of evidence--isn't politically partisan. Thus my subtle dig at contemporary conservative constitutional interpretation, which is often incoherent itself.)

EDIT: To be clear, in the case discussed in the article almost everything is more complicated than the simple hypothetical. I was responding at a point in this thread where the discussion already had become abstract.

[sjy]

This doesn’t sound right to me. As you point out, admissions are an exception to the hearsay rule. They are routinely admitted as evidence in cases where the defendant later retracts the admission and pleads not guilty. There is no Fifth Amendment violation or calling of the defendant as a witness for the prosecution.

I have never seen any authority for the view that the Fifth Amendment was intended literally to prevent the accused from being called as a prosecution witness at trial, as opposed to creating a general privilege against self-incrimination. For example, in Brown v. Walker (1896) [1], an early Fifth Amendment case, the Supreme Court said:

> the States, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim which, in England, was a mere rule of evidence became clothed in this country with the impregnability of a constitutional enactment.

[1]: https://supreme.justia.com/cases/federal/us/161/591/

[baddox]

> it'd be hard to ever prosecute someone for fraud if they didn't have to give up their books.

I'm pretty sure it's relatively simple for police to break into offices and take financial records. I would imagine it happens relatively often, because simply asking a suspect to give up their books seems more likely to result in them attempting to hide or destroy their books.

The reason police and prosecutors don't like encryption is because they can't use violence to acquire what they want, at least directly. They need new (or at least specifically-clarified) laws about what they can do to you to make you decrypt your data.

[throwaway17_17]

I would say that police use ‘violence’ to acquire what they want all the time and the de-encryption of data is potentially no different. It would be a foolish mistake to ignore the State’s monopoly on force. While there is certainly a difference between the threat of violence and the application of violence, it is more the general ability of the State to utilize force for those aims society has agreed are within the State’s remit. While it may not be ‘violence’ per se, detention and deprivation of freedom are certainly applications of force and said detention is often preceded by actual violence to secure an individual for that detention. I am certain that periods of detention are enough to make a decent percentage of even the most principled individuals turn over their data. It is clear game theory, if I can be held for multiple rounds of incarcerations while keeping the data, but I can reasonably expect some determinate sentence from something in the data, is the trade-off worth it? Law enforcement doesn’t need the clarity of law, individuals need clarity of law to restrict those officers.

[cryptonector]

It's called rubber hose cryptanalysis for a reason. Holding you in prison at all (let alone indefinitely) requires violence. Violence is applied to get the defendant to reveal their decryption keys.

[ajross]

> attempting to hide or destroy their books

This is precisely why "Obstruction of Justice" is a criminal offense with severe penalties available. The question then becomes: is deliberately encrypting and refusing to provide access to those books obstruction?

I know the folks here would argue otherwise, but IMHO it's not at all a clear argument legally. The original reasoning behind the fifth amendment was that without that protection the government would be tempted to use coercive tactics to induce a false confession. It's designed to prevent the torture of accused witches, not to be a literal get-out-of-jail-free card for crypto nuts.

[Dylan16807]

> is deliberately encrypting and refusing to provide access to those books obstruction?

Since email deletion policies aren't obstruction until you're told to suspend them, there's no way an encryption policy is obstruction.

> to be a literal get-out-of-jail-free card for crypto nuts

Pff. It's not like simply not writing things down is a get out of jail free card.

[thatcat]

To not encrypt your books for a business would be negligence; I assume you leave all your valuable information as clear text for the convenience of future investigations?

[ajross]

I wrote "is deliberately encrypting and refusing to provide access to those books obstruction?". And again, I don't think that argument is anywhere near as clear cut as you want it to be. The fifth amendment, again, is intended to prevent torture, not to prevent the collection of evidence in a criminal investigation.

So technicalities like you're invoking (is refusing to do something "obstruction" or not?) need to be balanced against technicalities on the other side (is providing a decryption key "testimony"?). And when courts have had to make decisions like this they've almost always done it by splitting the difference in some way instead of finding an absolute interpretation on one side or the other.

[bobthepanda]

> I'm pretty sure it's relatively simple for police to break into offices and take financial records. I would imagine it happens relatively often, because simply asking a suspect to give up their books seems more likely to result in them attempting to hide or destroy their books.

No, this requires a warrant in the US for it to be lawfully used as evidence.

It's worth noting that the defendant in question was told to unencrypt the devices by the courts, which is pretty much in effect the same thing as a warrant, so it's not as if the government was torturing him to decrypt the data; the court had already decided it was material evidence in a case.

[upofadown]

This is encryption we are talking about. The government is asking the suspect to find one key in a vast key space. So the actual question would be; can the government force the suspect to find the notebook for them if the only thing the government can prove is that the notebook exists some place where the suspect has deliberately hidden it?

[Johnny555]

but if they know about a notebook where you wrote it they can require you to give up the notebook

But if you wrote in a made-up language that only you know, can they force you to translate it?

[Ntrails]

How would you know the translation was accurate if it was done?

[Johnny555]

Good question, similarly how do you know the right encryption key was given, maybe there's a hidden volume that you can only see if you have the right key.

[specialbat]

How do they know you didn't lose or destroy the notebook?

[joering2]

Which of course is not how justice works, at least in USA. Here you are innocent until proven otherwise. Mere decline to produce a notebook (with or without evidence of crime in it) is in no way shape or form an admission of guilt or a proof of itself good enough to find you guilty. Look no further than the most important case of modern history - impeachment of Donald J. Trump. During Senate hearing Mr. Trump’s lawyers argued how important it is to forbid judges and juries from finding someone guilty merely on fact they invoked their fifth ammandment right. At the end Mr. Trump was acquitted in part based on this defense. And what’s good for a President of the country that is a beacon of justice and freedom, cannot be less good for an average Joe Doe.

[throwaway17_17]

As a semi-counter-point: 1) the argument, made by every criminal defense attorney in trial ever, that a jury can not infer anything from a defendant’s exercise of his/her 5th amendment right to remain silent is basically pointless. Juries, and individual jurors in the vast majority, do not buy it, they don’t accept it as the law in their minds, and they certainly factor it into deliberations;

I in no way want the following to appear that I have an opinion as to anything regarding Trump’s anything, but

2) Trump was acquitted because of the way the US impeachment process is set up, if I am sure of anything, it is the fact that no votes to acquit where based in any way on Seklow’s arguments about presumption based on the 5th amendment.

[joering2]

Politicans who found Mr. Trump not guilty have stated its in part because of lack of evidence otherwise. Everyone welcome to keep downvoting, but I will remain certain in USA you are innocent until proven guilty. You don’t have to prove your innocence. And many cases - even the big ones like Casey Anthony, OJ, Zimmerman, now Weinstein - prove that fifth amandment works.

[nulbyte]

You are not innocent until proven guilty; you are presumed innocent until proven guilty beyond a reasonable doubt. You are guilty, or you are innocent, from the beginning; only, we admit uncertainty in the presence of reasonable doubt, which evidence and argument need erode to prove guilt.

[rootusrootus]

Impeachment isn't a criminal trial.

[anigbrowl]

If you're innocent, why are you taking the Fifth Amendment? The mob takes the Fifth.

[zimbu668]

This explains why an innocent person should take the fifth: https://www.youtube.com/watch?v=d-7o9xYp7eE

[tedunangst]

Taking the fifth in a courtroom is rather different than not talking to police without a lawyer.

[pdonis]

> If you're innocent, why are you taking the Fifth Amendment?

Because innocent people do get wrongly convicted. If you don't want to be that innocent person, you might have to assert your rights, including your Fifth Amendment rights.

Note that the Fifth Amendment does not say that you can't be forced to incriminate yourself, as many TV courtroom dramas wrongly imply. Statements like "the mob takes the Fifth" are based on that kind of incorrect reading of the Amendment.

The Fifth Amendment actually says that you can't be forced to be a witness against yourself. A witness can provide testimony that looks incriminating even if the defendant is actually innocent, and such testimony can lead to an innocent person being wrongly convicted. The Fifth Amendment is there to help reduce the chances of that happening.

[anigbrowl]

Thanks for taking time to answer properly, and I agree wholeheartedly.

My post was above was a bit naughty, as I was quoting the current president (in response to a post discussing his recent impeachment) without revealing that it was a quotation.

[joering2]

Because anything you say may be used AGAINST you in the court of law. Nothing you say can be used to help you.

[anigbrowl]

It was a little underhanded of me to write that without quotation marks, but the words I posted above were famously uttered by the current President in 2016, when criticizing someone else for relying on the 5th amendment. My point is that his idea of justice is actually extremely variable depending on what benefits him at any given time.

[topmonk]

> This would seem to imply that if the government has ample evidence that you murdered someone, they can require you to admit to it in court.

They can require you to tell them where the body is if you “encrypted” its location (i.e. buried it somewhere)

[amarshall]

More that if they know you wrote down where the body is, they could require you to produce that piece of paper.

[phkahler]

It's more like they can make you open a safe. It's too bad for you if you kept someone's head in that safe.

[CiPHPerCoder]

No, it's not more like making you open a safe.

Telling someone the encryption key is being compelled to act as a witness against yourself, which the 5th amendment provides protection against (if used).

[JoeSmithson]

No it's not. The information you provide (the password) is not admitted as evidence in the trial. It's more like being compelled to act as a confidential informant against yourself.

There's no prospect of this being used to bring about a wrongful conviction through coercing a confession.

[adgasf]

If the key is not evidence then how can they prove that they got the incriminating files from the encrypted drive?

[JoeSmithson]

A forensic scientist would testify that they extracted the files from there.

It is exactly the same as when a confidential source gives up an address (for example) the source never gets into evidence.

[emiliobumachar]

Encryption is different in that all safes can be opened with physical access and a few days of expert work at most.

[acchow]

It's complicated - the guy claimed he forgot his password. So what does the law do at that point?

[Johnny555]

That seems like a plausible excuse. Years ago I encrypted an email archive with what I thought was an easy to remember password. But I've forgotten the password. I remember some of the password so I wrote a password cracker to try variants of that, but I still can't get in.

If the feds seized my hard drive and wanted me to decrypt that file, can they lock me up until I give up the password even if I really have forgotten it?

[tedunangst]

I suppose the judge will consider such factors as whether the drive is attached to your computer or shows signs of recent use. If your shell history shows you mounting the drive the day before arrest, that wouldn't play well.

[ClumsyPilot]

To lock up people forever for such things is to me unthinkable. There is no established responsibility to remember you password, or keep it safe. Memory failures are not very predictable

[chii]

The law often uses the "reasonable person" as a standard to measure such responsibilities. So would it make sense for a reasonable person to forget a password they typed in only yesterday (and/or perhaps many times before)?

[Johnny555]

So would it make sense for a reasonable person to forget a password they typed in only yesterday

Judging by our password reset request tickets, I can say "yes"

I've even forgotten a password just minutes after typing it. And I can't even tell you my desktop password despite typing it a dozen times a day for nearly 6 months. I once tried to give my wife the password over the phone and I couldn't do it without a keyboard to silently type on.

[brewdad]

That depends. I don't "remember" any of my passwords because I use a software program to randomly generate them as I need them and them store them for me. Occasionally, my password manager doesn't prompt me to save this new password and by the time I realize it, my clipboard has forgotten it or I've filled it with something else.

More than once, the first thing I've done after confirming a new account via email is reset my forgotten password. Am I guilty if I didn't bother to reset it right away?

[himinlomax]

I once forgot a 4 digit pin code I had used hundreds of time. It was scary, I thought I was going insane. I had to have it reset. (What I think happened is that I inverted two of the digits.)

[sandov]

By that standard, an innocent, unreasonable person would go to jail.

[sjy]

It’s not contempt if you forget the password, but saying you forgot doesn’t mean the judge has to believe you.

[ship_it]

Yes, I'm wondering about the law regulation in such cases too

[sjy]

The court decides whether that is true or not, just like when you kill someone but claim you were acting in self-defence.

[asdfasgasdgasdg]

Also worth noting that the court appears to only be saying that he can't be locked up because the government likely doesn't need the evidence to convict him. That is the stipulation under which he is getting out of jail for contempt. If the government did actually need to compel that evidence to make their case, they would be able to hold him idefinitely. Or else at least this ruling doesn't say otherwise.

[14]

I guess if the crime you're accused of carries a sentence worse than 18 months, it might be worthwhile, but who knows...

But in the US a criminal record can haunt you for decades. At job applications or housing applications. Elections. And many other bad things that haunt people for a long time. 18 months is horrible too but better then a criminal record haunting you.

[ramblerman]

Are there no legal precedents for this? I mean the non-digital equivalent must have occurred already. Somebody has some secret books, and/or information. And buries them in the desert.

Were they required to reveal the location?

[fredgrott]

but its private speech or so it can be argued that way and that is in fact protected by the US Constitution as we can say stuff in private that we may not be allowed in public spaces public speech.

[1000units]

My most important passphrases are very complicated, and I lose the ability to reproduce them from muscle memory (the only place they exist) after a few days of non-use. How can you prove passphrases are remembered?

[gamblor956]

They don't have to prove that you remember the passphrases. They just have to show that the encrypted devices/partitions/whatever were in your custody at the time of encryption.

Then you have to (a) show why you weren't the one to encrypt the devices or (b) make a 5th Amendment argument about why you don't have to turn over the encryption key during which time you may be incarcerated. "I forgot" is generally not a valid defense.

[TacticalCoder]

> "I forgot" is generally not a valid defense.

Am I the only here who had to re-install Linux after x weeks or months of uptime because the LUKS password was forgotten? It happened to me more than once.

How is it "generally not" (but sometimes yes?) a valid defense when it's a fact that people are losing their passwords?

The internet is full of messages like: "I forgot my LUKS password but remember it had the name of my dog in it" (not advising to do that btw), "Is there a way to crack my own password?"

P.S: I've got backup of all my files and configuration files, so re-installing Linux ain't a problem: theft / flood / fire / full-disk encryption password lost... I wouldn't lose anything.

[jliptzin]

Yea, makes no sense to me. I’ve forgotten many passwords for things I thought I’d never forget, including a bitcoin wallet. I can only imagine how hard it would be not using the password for months or years because law enforcement seized your device, and then having to produce it.

[Forbo]

> "I forgot" is generally not a valid defense.

The number of times that people invoke "I don't recall" while giving testimony under oath says otherwise.

[LanceH]

When they start applying these standards to politicians, then I'll be ok with it trickling down the people.

[incompatible]

It's really a different situation. The ruling party is basically above the law in the US, thanks to presidential pardons and control of the impeachment process.

[LanceH]

Sure. It's a false hypothesis, so it will never happen, and I can consistently say that I'll never be ok with this being applied to the people.

[1000units]

You're halfway to an important insight, but your partisanism is blinding.

[gamblor956]

We're talking about two very different things.

And for the record, a defendant claiming "they forgot" something within their control is valid circumstantial evidence of guilt or responsibility.

When claimed by the police or prosecution witness, it's just as much valid evidence against guilt, and has been used many times to get defendants off.

Basically, it's valid circumstantial evidence against the party/side that makes the claim of forgetfulness.

[solveit]

"I encrypted the device but don't have the key" isn't a defense to being compelled to decrypt the device?

[gamblor956]

No, they can hold you in contempt for up to 18 months in federal court, or indefinitely in many state courts.

OTOH, if you were to argue that it's not your device, or that you weren't the person that encrypted it, that's a very different situation.

[sjy]

This is incorrect. You can’t be held in contempt for failing to comply with an order you can’t comply with, for example due to a loss of memory. In this case the court did not believe that the defendant had forgotten the key.

[gamblor956]

Whether you actually have lost your memory is a factual question to be determined by a trier of fact. Generally, most triers of fact rule against the forgettor if forgetting benefits them.

OTOH, if a witness forgets, they would not be held in court, because there's no benefit to them forgetting, and so their loss of memory is believable.

[throwaway17_17]

Just to clarify, and your comment framed the apparent misunderstanding in the thread perfectly:

This ruling only says that the confinement period for contempt of court, where the court has order an individual to de-encrypt some data, is too long if it is more than 18 continuous months. This does not mean that after serving that sentence and upon subsequent release, that further refusal after another court order and hearing can not result in another sentence for contempt.

[nordsieck]

> "I encrypted the device but don't have the key" isn't a defense to being compelled to decrypt the device?

Try to think about it from the court's point of view. The truth could be:

A. You legitimately forgot.

B. You're lying.

I know which one Occam's Razor favors.

[function_seven]

The whole point of a justice system is that Occam and his Razor are a terrible way of determining guilt.

Yeah, I'd bet that most people claiming to have forgotten a key or password are lying. But so what? How do you differentiate those who're concealing vs. those that legitimately don't know the string of characters? If they float, they're a witch, if they sink, then I guess they're not? (That's what 18 months for contempt is akin to)

[sjy]

You differentiate them using circumstantial evidence. Was the encrypted disk found under a pile of dust in the attic? Then to forget the password is quite believable. Is there independent, convincing evidence that you regularly and recently used the password? Then you’re probably lying. Or maybe you’re just really unlucky. Wrongful convictions do happen.

[bcrosby95]

I don't. I have users that forget their password 5 minutes after they set it.

[Hitton]

Happened to me as well (multiple times). I blame copy pasting instead of repeating the password.

[hnick]

Encrypting a device to securely wipe it is not unheard of. Similar to running dd over it, but more noise to hopefully remove any lingering magnetic patterns. In such a case there's no need to retain the key.

[zzzcpan]

But it could also be that you legitimately accounted for such threat of the government trying to force you to decrypt your disks and made keys volatile and unrecoverable.

[1000units]

A. You're innocent.

B. You're guilty.

Uh, this is the essential question to begin with. The judge doesn't decide this unless you're in clown court.

[throwaway17_17]

Guilt or innocence is a question of fact, in the US court system. It is a determination that is left to the ‘trier of facts’ that can be a judge or a jury depending on defendant choice and statutory law for each particular jurisdiction. There are many defendants who choose to have a ‘trial by judge’ and waive a jury. It happens often and it happens for many reasons, and those facts make your assertion about a ‘clown court’ wrong.

I do understand the meaning and most likely intent of your post, but the language used is less effective than it could be.

[harikb]

Hypothetically, he might have remembered his real password but the Government didn’t protect the bit-rot capable hard drive and it is the hard drive that is now bad. May be sector level checksums and probabilities rule them out but it is possible in the grand scheme of things

[rootusrootus]

I wonder how it would work out if you confidently gave the wrong password.

Edit: I guess this case actually answers that, to some extent. Before he said he forgot the password, he tried a couple for them.