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To me it all comes down to whether you have to force the cooperation of the defendant or not when gathering evidence. Part of the problem is bad analogies: "Demanding the private key to an encrypted volume is no different than demanding the combination to a safe" or any other equivalent concept. If the defendant doesn't provide the combination to a safe than the blowtorches are coming out. At no point is his cooperation a _necessary condition_ to the gathering of evidence. However, to demand the defendant disclose the private key --or the more common "we don't want the key, just what's inside" demand-- is to require his cooperation. It is now a necessary condition that the defendant comply in order to gather this evidence. And as such, it becomes an invasion into the mind of the defendant for the purposes of coercing a confession.

Indeed, the judge could grant immunity to the defendant, thereby requiring him under law to "testify" his private key, but then you don't have a case to prosecute. I wrote about this more thoroughly here http://aspensmonster.com/2012/01/26/on-private-keys-and-the-.... I'm curious to know what others think about all of this but lack the time to read through tens of pages of comments at the moment :P




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