Actually surprised that arstechnica didn't call this out - maybe they knew their audience was sufficiently technical to get the implication.
The real issue here is that the legal system is then treating this guess itself as a sort of actual evidence for jailing the suspect.
Like, the line of questioning could be, did you find any images on the computer, did you find any evidence of techniques used to obscure information on the computer, could the images that so and so observed be stored using those techniques. It isn't confirmation that the images are there, but it is more than guessing out of thin air that there might be images there.
> State: you are under arrest on suspicious of possession of child pornography. You have the right to remain silent, anything you say can and will be used against you in a court of law. Do you understand your rights?
> Defendant: yes
> Witness: I saw what he has it in that computer
> State: now reveal the password
> Defendant: I invoke the right to remain silent. Have charges been pressed or am I free to go?
> State: no charges pressed, you are detained until you reveal the password
Here is how that could play differently in the future:
> State: you are under arrest on suspicious of murder. You have the right to remain silent, anything you say can and will be used against you in a court of law. Do you understand your rights?
> Defendant: yes
> Witness: I saw what he did to the victim
> State: now reveal the whereabouts of the body
> Defendant: I invoke the right to remain silent. Have charges been pressed or am I free to go?
> State: no charges pressed, you are detained until you reveal it
If the All Writs Act allows the government to do the first it also allow the government to do the second.
But the difference here is, can the state prove the drives are encrypted? Probably. I'd assume that's the case (forensic examination could reveal file names, logs, etc that provide evidence of that volume having been decrypted, the vast majority of encryption systems are readily identifiable)
Can the state prove he is capable and unwilling, rather than willing but incapable, of decrypting the drives? I don't think that could ever happen. What if he genuinely forgot the password? What if he never knew it (was storing them for someone else, a common lie/excuse to give to police but something that could be true, any number of other reasons)?
Does every person have to be able to provide access to all encrypted data on their devices if served with a warrant, with the consequences of being unable to do so indefinite imprisonment? Is forgetting or losing a password in unlucky combination with an false accusation of wrongdoing grounds for a life sentence?
When I do this it is more of a flag to remind my self that I have, in fact, finished scrubbing the device.
The first case allows police to make a search they couldn't make before.
The second is... I don't even know what. I would expect if you wanted them to be equivalent, you'd make the second more like: "We know you hid the body in your yard. Unlock your gate so we can enter and find it."
In the case of the hard drives, providing the decryption key establishes only that the drives belong to him or that he at least has access to the information they contain.
In the second case showing the police where a body is located is in itself strong evidence that he was involved in the crime.
The burden of proof is on the accuser. The accused bears no burden of proof. This principle goes back almost 2,000 years, across multiple cultures, includes the Universal Declaration of Human Rights, predates and includes the American culture as well. [1]
> Given a (encrypted) file named "bank_account_password'.txt", can you guess its contents?
Based on the current reasoning, the "expert" would say:
> Yes! It contains the password to a bank account!
The defendant could then "decrypt" the file and show that it was instead a JPEG picture of a bird. Case closed.
I wouldn't have a desire to reveal that either.
The only non-encrypted drive I need are thumbdrives for playing thing on my media player (WD). But I'd love to close that gap should anyone market a reasonable media player that can handle encrypted drives.