> At issue there is the "foregone conclusion" exception to the 5th amendment.
The unclear part seems to be how strong the evidence needs to be that the device is yours and that the evidence is on there. In this case, his sister testified to both. But would it be strong enough with forensic evidence alone? Unclear.
> As far as I understand things you've lost the case by that point anyway.
Perhaps, but there may still be significance to what's on that drive. There may be incriminating evidence there for other crimes for which you're not yet being prosecuted.
> Even then, I believe there would still be the additional issue of demonstrating that the defendant actually knows the password.
They're saying the sister's testimony was sufficient to prove that he knew the passwords previously.
Proving present-day capability to decrypt doesn't seem to be necessary, at least in the article I linked.
> The federal court denied the Motion to Quash and directed Doe to unlock the devices for the investigators. Doe did not appeal, but he refused to unlock some of the devices, claiming that he had forgotten the passwords. He was eventually held in contempt by the District Court, and the Court ordered that he remain in federal custody until he was willing to unlock the devices.
The accused claimed he could not decrypt the hard drive because he had forgotten the passwords, but he was still being held in contempt.
> The unclear part seems to be how strong the evidence needs to be that the device is yours and that the evidence is on there.
The 5th amendment protects you from having to testify against yourself, but it doesn't protect you from having to turn over incriminating evidence against yourself. The 4th amendment protects your stuff, but only up to the point of requiring probable cause for a warrant.
At issue in these sorts of encrypted storage scenarios is whether you would be incriminating yourself by demonstrating that you know the password. Knowing the password for an encrypted device basically proves that it's your device, so forcing you to decrypt a device would amount to forcing you to testify against yourself in the event that there is doubt about whether the device is yours.
So to force you to decrypt a device there needs to be a warrant for the contents, and it needs to be no doubt about the fact that it is indeed your device. So it needs to be a foregone conclusion that the device is yours, but only requires probable cause to believe that something specific and illegal is stored on the device.
The unclear part seems to be how strong the evidence needs to be that the device is yours and that the evidence is on there. In this case, his sister testified to both. But would it be strong enough with forensic evidence alone? Unclear.
> As far as I understand things you've lost the case by that point anyway.
Perhaps, but there may still be significance to what's on that drive. There may be incriminating evidence there for other crimes for which you're not yet being prosecuted.
> Even then, I believe there would still be the additional issue of demonstrating that the defendant actually knows the password.
They're saying the sister's testimony was sufficient to prove that he knew the passwords previously.
Proving present-day capability to decrypt doesn't seem to be necessary, at least in the article I linked.
> The federal court denied the Motion to Quash and directed Doe to unlock the devices for the investigators. Doe did not appeal, but he refused to unlock some of the devices, claiming that he had forgotten the passwords. He was eventually held in contempt by the District Court, and the Court ordered that he remain in federal custody until he was willing to unlock the devices.
The accused claimed he could not decrypt the hard drive because he had forgotten the passwords, but he was still being held in contempt.