[rayiner]

There are two issues:

1) Does the Fifth Amendment apply?

2) Does the Fifth Amendment prohibit certain things?

The Fifth Amendment, like the others, generally applies to not just citizens, but legal residents and others who are on U.S. soil.

The second issue is what's interesting here. The literal text of the Fifth Amendment is:

"No person... shall be compelled in any criminal case to be a witness against himself."

Literally, it prohibits people from being forced to testify against themselves in a criminal trial. The Supreme Court has ready it very broadly to prohibit all sorts of other things, but one limit it has recognized is that it still only applies to "testimonial" incrimination. Think: testifying on a witness stand. Non-testimonial acts, like forcing someone to unlock a box, are not covered.

Some courts have held, and the EFF argues, that providing an encryption key is unlike providing the key for a box because it requires you to recount things that are in your memory, and is therefore testimonial.

[lmkg]

> Non-testimonial acts, like forcing someone to unlock a box, are not covered.

(IANAL) The example is not 100% applicable. You can only be legally compelled to open a lockbox if doing so provides no testimonial information. If there is uncertainty around whether you had control over the contents of the lockbox, then opening it would definitely provide that information. This action is therefore considered to have a testimonial component, and covered by the 5th Amendment.

You can still be compelled to open the lockbox, if doing so will not run afoul of the 5th Amendment. There are generally two ways to do so. One is that the action does not have a (non-trivial) testimonial component: If there is no doubt that you had control over the contents of the lockbox, then there is effectively no information being provided. The second way is that the testimonial component is not used against you: the prosecution cannot say that you opened it, but is otherwise allowed to use the contents as evidence (with caveats).

[derekp7]

A close analogy is: Even if you can be compelled to open a lock box, if it is filled with papers that are in an unknown language, can you then be compelled to translate those documents? That, to me, is the equivalent to providing a decryption key.

[rayiner]

I don't think it's a great analogy, because translating documents requires a wholly different level of mental involvement than simply recounting an encryption key. Note that even fishing out and providing a regular key requires some degree of mental involvement.

[derekp7]

What about providing information such as what language the document is written in? Of course, the real equiv. is if the document is written in code, then can you be required to reveal the secrets of the code?

[einhverfr]

> Some courts have held, and the EFF argues, that providing an encryption key is unlike providing the key for a box because it requires you to recount things that are in your memory, and is therefore testimonial.

I am not aware of any court in the US which has held otherwise to be honest.

There are a few cases where individuals were ordered to decrypt contents but in all those cases, it was content that the law enforcement officials had already seen on the computer.

For a parallel, there's a case before the Supreme Court which was just argued over whether the 5th Amendment protects an individual from testifying against himself in the context of a court-ordered psychological evaluation. The likely outcome is that it does unless the defendant raises an insanity defence, and then, as long as the defendant can offer evidence that he was not sane, the state gets to compel him to have an evaluation.

What I am getting at is that the 5th Amendment almost certainly both applies and prohibits, generally, forced decryption at least in the US. There may be cases, however, where the 5th Amendment does not apply because nothing new is revealed to the government that the individual has not already presented.

[JonSkeptic]

>The Fifth Amendment, like the others, generally applies to not just citizens, but legal residents and others who are on U.S. soil.

This true only once you are on the soil, not at the entry points. If you are not a US citizen, or at least granted some form of acknowledgement by the government i.e. a visa, the protections of the Constitution and the Bill of Rights do not apply to you. Again, this is true at the entry point to the US[1].

So to come back to the original example: if I enter the US as a non-citizen, can TSA or border security force me to decrypt my hard drive? The answer, with no doubt, is 'absolutely, yes they can'. In the eyes of Homeland security, if you are not a US citizen, you have no rights at the border and they will not hesitate to detain you or send you right back if you are uncooperative.

[1]https://www.aclu.org/files/kyr/kyr_english_5.pdf

[stcredzero]

Literally, it prohibits people from being forced to testify against themselves in a criminal trial.

The 5th Amendment and other parts of the constitution are taken to imply other rights. The Presumption of Innocence is one of these. (Taken to be implied by the 5th, 6th, and 14th amendment.) However in U.S. law, it is fine for jurisdictions to compromise this for certain kinds of crime. Prosecutors may not need to prove motive or intent, for example.

[einhverfr]

> Prosecutors may not need to prove motive or intent, for example.

This is true but even for strict liability crimes there may be vagueness problems unless you can show some degree of at least a very general intent.

For example consider rape. You can't imprison someone because of a totally reasonable misunderstanding of this sort, so typically you are going to have to construct consent from the view of the accused. This leads to all sorts of things like (in many/most/all? states) the nature of the relationship is relevant. If you wake a woman up with sex and she's your wife and you normally share a bed, no prosecutor anywhere is going to consider that rape, but if you move into the bed of a friend-of-a-friend you let sleep in your guest room and wake her up with sex, that will be.

These things get really complicated. My reading of the cases in the US which have ordered compelled encryption have held that there was already full testimony that the documents existed and were of a certain nature, and were decryptable by the defendant that it was solely a matter of demonstrating what was already testified to.

[stcredzero]

This is true but even for strict liability crimes there may be vagueness problems unless you can show some degree of at least a very general intent.

The problem here is that the prosecutors hold a lot of sway over how much Presumption of Innocence should be relaxed in each case, as they are the ones who advise the governments of local jurisdictions about these matters. That would be like the umpires always being on the payroll of the home team. I'm not so sure this situation is conducive to a level playing field.