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I just asked a lawyer friend this that does trials; he says: in cases where there is a sealed safe (the police / govt didn't breach it for whatever reason) a court will usually ask you to open it if the prosecution can provide enough evidence to suggest that the contents are a critical element to the case. That requires some kind of trail that leads to the safe. A court won't just automatically force you to open your safe and potentially incriminate yourself; but they also will not allow you to use a safe to hide your murder weapon if all evidence points to you having stored it there.

In the case of cryptography, if the contents are bad enough to put you in prison for a zillion years, obviously you have to make a judgment call as to the punishment if you refuse a court order to decrypt the contents. Since this is still such a relatively new gray area, I'd say a court would still blaze its own path (not depend primarily on prior precedent) in deciding if you're to be compelled. Perhaps you aren't likely to be convicted of the worst charges if you don't decrypt, and it might prevent the prosecution from building up other charges, but you will be punished by the court for refusing its order.

Would refusal to decrypt be contempt of court? If so, the penalties seem to be far more lenient than any of the crimes I can think of that one would want evidence of hidden. It may well be that savvy criminals would adopt strong encryption as a matter of course.

Yes, it'd be contempt of court if you disobeyed a court order to decrypt a drive. The contempt would very likely be preferable. It's not a felony after all.

It'd have to be better than what is on the drive - assuming you've got anything on the drive to begin with (some kind of incriminating evidence or something else they can build charges with). The difference might very well be that you prevent the prosecution from building a strong enough case, and at the least maybe you buy yourself some time to build a better defense.

I'd predict that as major crime continues to shift to the digital realm, criminals will adopt ever stronger encryption for that very reason, and the government will use that practice to argue in favor of violating more civil rights. Seems to be the trend these days.

IANAL, but isn't there something about the rules of evidence?

Like, the prosecution can't just say "we think he hid it on an encrypted HDD, but we aren't sure". The judge won't allow that. But if you claim to have forgotten the password, then the prosecution can speculate.

What if the evidence is exculpatory, but you still refuse to decrypt it? Then you'd be in contempt of court for failing to defend yourself adequately.

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