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Two analogies I use: rag doll and sawz-all.

Rag doll: so long as they can manipulate your uncooperative unresisting body to do something (apply thumbprint, get DNA sample), they can order you to cooperate. They cannot, however, compel you to do something which they otherwise have no case without.

Sawz-all: so long as getting into a safe (or whatever) is just a normal matter of time and money, they can order you to open it. If, however, "opening" an encrypted volume or some such by brute force will take something on the order of heat death of the universe, and otherwise they have no case, you can stay silent.




Those analogies are only useful to the extent they agree with the law. Otherwise they're just arbitrary.


As if the law isn't arbitrary! Both are arbitrary, and both might be reasonable.


He didn't say "reasonable", he said "useful".


If the safe then contained papers written in code, or an unknown language, would the court be able to compel the owner to translate those documents? To me, the hard drive platter is the paper, whereas the encrypted data is the contents of the papers.


> If the safe then contained papers written in code, or an unknown language, would the court be able to compel the owner to translate those documents?

under some circumstances, they could. the "foregone conclusions" doctrine says that if they know 1) what the contents say, 2) that those contents are incriminating, 3) that you can translate it, and 4) can prove 1-3, then yes, then can compel you to do translate / decrypt.


If they already know what the contents say then what's the use?


this is exactly why they can compel you to testify against yourself. the additional testimony (decrypting your drive) is a "foregone conclusion". this is one of the few exceptions to the fifth amendment.


Those analogies miss a key point. Only the testimonial aspects (e.g., implicitly acknowledging that the files actually exist and are under one's control) are protected. Furthermore, under the “foregone conclusion” doctrine, even the testimonial aspects may not be fully privileged.

See Footnote 19: "If in the case at hand, for example, the Government could prove that it had knowledge of the files encrypted on Doe’s hard drives, that Doe possessed the files, and that they were authentic, it could compel Doe to produce the contents of the files even though it had no independent source from which it could obtain the files."




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