Actively impeding the prosecution, in the form of refusing to decrypt a drive known to contain inculpatory evidence, is in many ways tantamount to destroying that evidence. (Assuming, of course, reasonably secure encryption technology, &c.) You're not incriminating yourself by giving them the plaintext; they already know you have it, whether through confession, third party testimony, or some other means.
What the court is saying here, OTOH, is that it would be testimonial, and hence subject to 5th Amendment protection, for you to decrypt a drive the prosecution merely suspects to contain inculpatory evidence, however strong their argument for suspecting such evidence to exist (and they'll have much better arguments than, "Well, drive is big enough to hold millions of files..."). If they were to find any such evidence, they'd have found it through compelling you to provide it to them, and that's the thing they're saying is counter to the 5th Amendment — that, in providing them with evidence they didn't already specifically know to exist, you've incriminated yourself.
Nope. Doesn't fly. You imply that now that person can be jailed and held in contempt indefinitely until they comply.
Ok, so what if they forgot the password? What then? Forgetting the password is not the same as physically taking a hammer and destroying the hard drive. As far as the prosecution getting access to the documents, it has the same effect, but that is just that -- the same effect, it does not fall into the "knowingly destroying evidence" type action automatically.
So now you suggest that basically people can punished for forgetting. I see a big problem with that.
Indeed there have been cases in the UK where the defendant's apparent cooperation was enough to ensure there could be no RIPA prosecution even though the password to the encrypted hard drive did not seem to work. So this is not merely hypothetical.
But it isn't /actively/ impeding, it's passive. One is refraining from taking an action.
>one is actively refraining from taking an action.
Similarly, requiring you to actively aid in your own prosecution has no precedent. You can "lie by omission" while providing testimony, for example.
Not doing something to protect evidence is different from doing something to destroy evidence. If that's not the case, then every drug user has "destroyed evidence" of its possession by burning it and inhaling the fumes or by digesting it with their stomach acid.
Disagree. The encrypted laptop contains evidence, in the form of emails, chat logs, or whatever, generated in the course of the discussion. Wearing gloves doesn't destroy evidence; it simply prevents its creation. Not logging your chats about drug deals would be the equivalent of wearing gloves while burgling; logging to an encrypted drive is something entirely different.
You can "lie by omission" while providing testimony
Not always. If you don't mention that you were watching your neighbor in the shower when you saw the defendant break into her apartment and kill her, no-one's going to bat an eye. If the omission is materially relevant to the matter at hand, and made with an intent to mislead, however, that's still perjury.
Sorry, you lost me. If the prosecution "already knows", then why does the drive need to be decrypted? It sounds like they already have the evidence.
And if they don't? Well, that's the definition of a "fishing expedition", isn't it?
Child pornography is special, because merely having "possession" of certain information is a crime. The law itself is bizarre, so you get bizarre results like this.
A conjecture is not the same as knowledge, "in the abstract" or otherwise.
Are eyewitnesses saying "I saw him type the death list into his laptop" good enough? What is the criteria to meet that point?
In many cases they can have intercepts, or bugs (cameras), but they are often not enough to form a water-tight case. They can therefore "know" you have incriminating data on your drive (or at least they will argue that point).