[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.

[throwaway17_17]

I think we are agreeing on the end result, I was just suggesting that I don’t think the courts are going to be keen delve into 5th amendment intricacies and how speech may be compelled. I was just offering what I think will be the path of least resistance in the opinions in this area. I think your argument and reasoning is sound, I just think the courts are going to dodge any discussion of that by deciding prematurely that this area is like DNA(in the context of forced blood draws) and just rule, punting on the reasoning you put forward.

An unecessary personal detail: I wouldn’t describe myself as leaning liberal on constitutional interpretation (although all my Writs would lead one to assume I am firmly in favor of it), I certainly see myself as a die hard centrist in this area.