There's a line, and past that line, law enforcement has no power to enforce laws at all. Removing the DOJ's ability to collect evidence is, in some cases, the equivalent to denying a detective access to a crime scene. If all productions of electronic evidence can be encrypted, and the defense is not forced to decrypt those files, then dirty corporations only need to encrypt everything to defend themselves in court.
Defense: "We produced everything you asked for."
Prosecution: "We can't even verify that statement. Decrypt it"
Defense: "We don't have to."
Case closed.
for example, there's no need for a right to free speech if you're only going to say things that everyone thinks should be said.
rights exist because some things are so important they are worth the cost of abuse.
At first blush it may be thought surprising that one should have a right to do that which one ought not. Is it not better to confine rights to that which it is right or at least permissible to do? But to say this is to misunderstand the nature of rights. One needs no right to be entitled to do the right thing. That it is right gives one all the title one needs. But one needs a right to be entitled to do that which one should not. It is an essential element of rights to action that they entitle one to do that which one should not. To say this is not, of course, to say that the purpose or justification of rights of action is to increase wrongdoing. Their purpose is to develop and protoect the autonomy of the agent. They entitle him to choose for himself rightly or wrongly. But they cannot do that unless they entitle him to choose wrongly. - Joseph Raz, The Authority of Law (p 266)
the final sentence of the quote above is hugely important.
Similarly, you aren't going to convince me that a prosecutor, warrant in hand, has no right to search a computer for evidence of credit card fraud.
in this case, there may be a right to silence. i don't know (i am not american) if that "really is" a right. but if it is a right then it exists even if it allows, say, a paedophile to escape justice (through remaining silent). it's not nice, but it's the price you pay to help guarantee freedom.
[edit: it's perhaps worth adding that you could make rights more complicated. you could say that there is (or should be) a "right to silence except when it's a password", for example. there's no prima facie reason why rights should be simple. but there is a strong practical reason why rights should be simple: they need to be simple so that they are easy to understand, easy to defend, and easy to use. again, this is because rights - real rights - are critical, might-be-needed-to-save-the-world things. and that is also why there should only be a few of them.]
Nobody is revising the Bill of Rights, the Fourth or Fifth Amendments.
At least agree that there is a conflict here; otherwise you're just being dense.
AFAIK the govt. cannot compel (legally) anybody to reveal the combination to a ticking time-bomb; or the location of a murder weapon etc. How the hell is asking for a passphrase any different? Do you really not understand the nuance here?
The other point is that AFAIK the govt. has never asserted the right to compel a handwritten note to be deciphered. The govt. doesn't assert the right to systematically read people's mail (even postcards); but they do so wrt electronic comms. I think we can safely state that almost all comm. is going to be electronic in the future. That's why this is important. This is yet another example of the govt. trying to trim back rights that the hoi polloi have enjoyed for a couple of centuries.
As to why this is important: you might have read the quote that six lines by any man's hand are enough to hang him.
Sorry, I meandered a little there.
The hand-written note argument doesn't hold water, in my eyes, because it is the encryption of all of the evidence, not any one document, that is at issue. As was mentioned, the government has compelled people to open safes.
Imagine for a second that I was less technically minded and didn't use encryption and I purchased a used laptop from someone who did, I then get caught up in the legal system (guilty or innocent for the charged crime, it doesn't matter, but I did not use encryption) and some prosecutor has a warrant to compel me to unlock that encrypted volume, else I be held in contempt. What now?
A guy going through border guards control somehow let them see he had illegal images on his laptop. The court concluded he is no longer protected by Fifth Amendment because of that, and ordered him to EITHER reveal the password OR give access to the (encrypted) content in question in some other way.
http://news.cnet.com/8301-13578_3-10172866-38.html?tag=mncol...
If you were to refuse to give the password under the grounds that someone you refuse to identify sold you the computer with the encrypted data already on it, then you would rightly be considered to be lying because that's the most plausible case for that behavior.
Assuming the original owner can be identified (I've bought a laptop off of craigslist with no way to find the previous owner even a day later), found (contact data is still valid, person is willing to cooperate with the investigation), is willing to corroborate your story (what if the laptop was, unbeknownst to the buyer, stolen property or the seller pleads the 5th and/or lies about the encrypted files), and that the prosecution is willing to believe the both of you.
It is simple, but relies on a WHOLE lot of faith in the system.
you would rightly be considered to be lying because that's the most plausible case for that behavior.
If you're going to be held in contempt (as the GP seems to be discussing) just for something that is the most plausible of options kind of destroys the judiciary's position of dealing with the complex unforeseen circumstances that arise in law. The most plausible situation is that OJ killed his wife, but we don't carry out justice with such imprecision.
>If you were to refuse to give the password [...], then you would rightly be considered to be lying...
exactly. This is why you have the right to remain silent. You're not "refusing to give the password under the grounds", you're not giving "answers that isn't the password". You're just silent. A vegetable. Otherwise any answer, like you explained it yourself, can be used against you.
Sorry your honor there were no incriminating papers found.
Passwords to encrypted containers are slightly different - they're not as simple as a key to a safe, and not as obviously protected as my above (contrived) example. However, the same problem exists. If I compel you to decrypt an encrypted volume, and you don't actually have the password (i.e. it's a friends', or whatever), then it's similar enough to the example above.
I'm not a lawyer, nor am I well-versed in law. But I know enough to say that it's not nearly as cut-and-dried as some people think.