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Comment by sjy | Hacker News Reader

There's also no directly observable difference between killing with or without intent, which is why we have murder trials. The ability to decrypt data can be inferred from the surrounding circumstances, which is what happened here[1]:

> The defendant did not testify at the hearing and did not offer any other evidence or testimony in support of his contention that memory failure prevented him from complying with the court's order. On September 14, 2015, the court issued an order granting the government's motion, App. 6-10, finding that Doe was engaged in a “deliberate ruse” in claiming memory failure as to the external hard drives and that he intentionally disobeyed the court's orders directing him to decrypt the devices.

[1] Government brief, p 12: https://arstechnica.com/wp-content/uploads/2017/02/fedsrawls....

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Yes, the court system exists precisely to determine fuzzy things like this.

I'm still curious, what kind of evidence or testimony might be considered believable in this case. Whether someone remembers a particular sequence of words and symbols seems like a thing that's very hard to determine, and by its nature it's unlikely there is any evidence either way.

From the quote you give (and I'll admit I have not read up on this case beyond the article, so it's possible I'm missing something), it sounds like he claimed he didn't remember the password, the court responded with "I don't believe you because you haven't proven that you don't remember it, so have fun in jail until you decrypt."

How would you prove, if you were brought into court, that you don't remember a specific password?

By giving credible oral testimony. The defendant chose not to do that, perhaps because it would have exposed him to cross-examination, and perjury charges if his implausible story was rejected (he remembered other passwords and had been caught with child pornography on other encrypted volumes, and the government may have had evidence about how recently and frequently he had decrypted the external drive, because they were able to decrypt his OS drive). Hopefully, if you really did forget a password you'd be able to give a believable explanation that holds up under cross-examination.

>credible oral testimony.

So the system as it stands is you can be jailed indefinitely because a judge does not believe you actually forgot a password? That doesn't sound ideal.

He gave no testimony, so there's nothing to disbelieve. Everyone has the right to not self incriminate, but that's not a get out of jail free card.

Honestly, what do you envision as an ideal system? The legal system can't be structured like software. You have to be able to cope with unknowns, things that cannot be proven 100%, and people who won't cooperate. This stuff isn't binary.

Regardless of cooperation I disagree with indefinite detention. Write a law that requires you to hand over a key to law enforcement(this will likely require a constitutional amendment) with a specific penalty or follow the constitution as written.

well you can start by codifying your laws and getting rid of juries. there's different types of legal systems.

https://en.m.wikipedia.org/wiki/Civil_law_(legal_system)

civil law / roman law, as used in a large part of the world including Europe. (different from civil law as the term is used in the US)

things are quite a lot more clear cut if you just codify (yes, exactly like code, our law books look like code in human language, precisely worded) instead of reinterpreting the law on case by case basis and some ancient writings reinterpreted to fit a modern setting (even they were made by smart folks, it's still almost religion)

This doesn't answer the parent's point. Most cases turn on the facts, even in civil law systems. Defendants still get locked up when judges don't believe them, and judges can still get the facts wrong.

Most U.S. federal law is codified, including the contempt provision that applied here (18 U.S. Code § 401). Codification does not remove the need for courts to resolve ambiguities. The constitutional right in this case is a good example: there is no explicit privilege against self-incrimination in the European Convention on Human Rights, yet the European Court of Human Rights has found that Europeans do have this right, and has explained its scope by 'reinterpreting the law on a case by case basis' [1].

[1] http://cardozolawreview.com/Joomla1.5/content/30-3/ASHWORTH....

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