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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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