Most of the time, absolute certainty that someone is guilty is not possible; that's why the criminal standard is "beyond a reasonable doubt", not "proven to the point of mathematical certainty".
In this case, the simple fact is that the court does not believe Rawls's assertion that he is unable to comply, so he remains detained on contempt. This will change once the court is convinced that Rawls is indeed no longer able to comply.
No, I don't think any private individual should be jailed for failing to decrypt data, regardless of whether they are able to, as part of a case wherein they are the accused. This should be a basic fundamental right of the accused, and I think the current working interpretations of the fifth amendment are unjust.
> How would any criminal justice occur if we let people off with flimsy excuses like that?
Justice in my view is the presumption of innocence, with the duty to demonstrate guilt beyond reasonable doubt placed on the prosecution. Forcing accused to decrypt data obviously helps the prosecution, but so would warrantless searches, and I oppose both for precisely the same reason.
Warrantless searches are unjust because the police can come in and execute them without oversight. In this case, the neutral overseer (the court) has directed the accused to comply with a request from the investigators.
Warrants are a check against rampant tyranny. They are issued or declined by an independent judicial officer whose incentives are, at least theoretically, not aligned to favor either party.
Warrants don't exist because we think it's unfair to comply with reasonable requests from the organs of the state in the their pursuit of justice, even when you're among the accused. Rather, they exist to make sure that the requests remain reasonable and fair and serve the interests of justice.
Like many things in our government, these are checks to limit and constrain the power of distinct government bodies and ensure that they do not get out of control. It is incorrect to assume that these restrictions exist for the convenience of criminal suspects, because they don't.
Well, it's not, and that's a terribly naive viewpoint. This is akin to a legal search. Are you also against those? How is this any different than compelling a suspect to e.g. open a safe in their home?
Not my problem, get your own codebreakers to do it.
It is literally the same as ordering me to tell them how to make sense of the unreadable data.
I'm not giving them a plaintext copy of something already existing elsewhere (assuming no unencrypted backups), but producing new information for them.
And unless you used FDE with full authentication (AEAD), which almost nobody does, there's nothing that says that this particular ciphertext represents the exact plaintext I've had at any given point in time.
With XTS mode (Truecrypt) you can cut and paste together different blocks from different ciphertexts under the same key for as long as they're in the right positions. Depending on how much you know about the computer and if you've got access to multiple backups, you can splice together something that even if it doesn't contain anything illegal, it would look suspicious and incriminating.
Consider for example LE getting your full file version history of a container from Dropbox.
And revealing the keys is a kind of testimony that you have had read/write access to the drive, and that it indeed is encrypted (not just random).
If he had a password hidden on Mt. Everest and demonstrated that to the court's satisfaction, and then cooperated with the court's order to reasonably assist in decryption (e.g., allowing the court access to the sherpa that routinely retrieves this key and enters it to decrypt his disks via some remote mechanism), I assume he would be considered compliant.
But if this were really how he obtains the password (and similar schemes of off-site passwords and accomplices aren't so outlandish in the case of servers which might require the keys on reboot a few times per year), how could he possibly defend himself from the contempt charge? It sickens me to imagine being in the same situation. If this isn't an instance of the cruel trilemma, I don't know what is =(
His case hinges on whether he can prove that the work necessary to decrypt the disks, which is understood to mean entering the keys which he remembers, is testimonial self-incrimination and thus illegal under the Fifth Amendment.
Believe it or not, most judges are aware of smartasses and are not required to accept "Well, I don't remember, and you can't prove that I do, so ha! You have to let me go now!" The evidence surely indicates that this man used his computer regularly, which necessarily required unlocking his disks, and that means that by all rational conclusions he is, or at least was, capable of complying with the order.
Until the court is fully convinced that he is no longer capable of complying, or until the order is dropped, modified, or stayed, Rawls will remain detained for his failure to comply.
Whether or not this is true is precisely the crux of the matter. Your comment echoes the government's position: Decrypting the hard disk is not equivalent to testimony, and is therefore not protected by the fifth.
The defence and EFF's amicus brief argue instead that we live in a world where our phones and computers are effectively an extension of ourselves, and asking to decrypt those is equivalent to forcing you to testify on your most intimate secrets, which is most certainly not kosher.
Well that is understandable but what if he burned the passwords just before he got arrested, heck he might even chewed them up and those are long gone. How would they find out? If he is a such dangerous child molester should they go full Sam L.Jackson Unthinkable style on him?