It seems that the primary contention here is whether a password constitutes physical evidence, which must be supplied upon the production of the correct edicts, or whether it constitutes "testimony", which I interpret to mean non-recorded ideation or mental processes. Supposedly the same argument could apply to a safe combination, hence a defendant cannot be compelled to reveal a combo but can be compelled to open the safe. But how do we prove that the defendant has access to the safe? And how do we prove that the defendant has access to the encrypted files?
IANAL but this question particularly is of course interesting to me. At first glance it seems that the 5th Amendment guarantee against self-incrimination would preclude decrypting drives and I've read several proclamations to that effect, but when we consider the rules surrounding surrender of physical evidence, including evidence contained in a safe, it does become less clear where information cryptography fits.
If a defendant handwrites letters in a custom cipher, can he be compelled to reveal the cipher or decode the letter? Perhaps that's a better analog than the safe in our situation.
"Supposedly the same argument could apply to a safe combination, hence a defendant cannot be compelled to reveal a combo but can be compelled to open the safe."
Can the defendant even be compelled to open a safe? Suppose you have a case in which the defendant has either specifically disclaimed ownership of the safe in question or disclaims any knowledge of the combination or has flatly refused to either confirm or deny ownership of the safe or knowledge of its combination on fifth amendment grounds. I'm no lawyer, but I suspect the standard procedure in such cases is that the judge issues a warrant that permits police to access the contents of the safe and no burden is placed on the defendant to do anything at all. Rather, because they have a warrant for the contents of the safe, the police are entitled to open it and they do just that, using a locksmith or mechanical means to force it open. The analogous situation with respect to encrypted data would be that the police are welcome to crack the encryption themselves by whatever means they deem appropriate, but the defendant isn't required to do their work for them.
I believe the police have the right to open the safe, but you aren't required to open it for them. If the police came into your house and said "show us every hidden object" so we can decide if it is illegal. You wouldn't be required to comply.
It seems that the primary contention here is whether a password constitutes physical evidence, which must be supplied upon the production of the correct edicts, or whether it constitutes "testimony", which I interpret to mean non-recorded ideation or mental processes. Supposedly the same argument could apply to a safe combination, hence a defendant cannot be compelled to reveal a combo but can be compelled to open the safe. But how do we prove that the defendant has access to the safe? And how do we prove that the defendant has access to the encrypted files?
IANAL but this question particularly is of course interesting to me. At first glance it seems that the 5th Amendment guarantee against self-incrimination would preclude decrypting drives and I've read several proclamations to that effect, but when we consider the rules surrounding surrender of physical evidence, including evidence contained in a safe, it does become less clear where information cryptography fits.
If a defendant handwrites letters in a custom cipher, can he be compelled to reveal the cipher or decode the letter? Perhaps that's a better analog than the safe in our situation.