So the police no longer need to plant drugs. They can just plant encrypted hard drives to which you have 'forgotten' the password. Hard-drives containing hashes of 'bad' pics. And then you can spend your life in jail (unless you plead guilty) ?
The only problem I have with this argument is that if it is such compelling evidence why not send the case to trial and let a jury decide?
See https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...
Source: https://arstechnica.com/tech-policy/2017/03/man-jailed-indef...
A relavent paragraph:
In Fisher, however, the Court also articulated the “foregone conclusion” rule, which acts as an exception to the otherwise applicable act-of-production doctrine. Fisher, 425 U.S. at 411. Under this rule, the Fifth Amendment does not protect an act of production when any potentially testimonial component of the act of production—such as the existence, custody, and authenticity of evidence—is a “foregone conclusion” that “adds little or nothing to the sum total of the Government’s information.” Id. For the rule to apply, the Government must be able to “describe with reasonable particularity” the documents or evidence it seeks to compel. Hubbell, 530 U.S. at 30.
Note that the issue with this question is the "existence, custody, and authenticity" of the evidence not its actual contents.
1. https://arstechnica.com/wp-content/uploads/2017/03/rawlsopin...
(Of course if he was lying about the failure of his memory, that assertion might have gotten him into more hot water -- it would potentially be a perjury charge. But we should not say definitely "he was lying when he said that to police" but just "he didn't make that case for himself at court," if I'm reading these court documents right.)
Just to give the relevant excerpts, the supplemental order that the judge issued to explain his reason for the contempt order states that he's using a well-established legal framework for figuring out memory-failure type contempt cases, quoting one of those cases directly as:
> A civil contempt proceeding on a witness' asserted memory loss requires a three-step analysis that shifts the burden of production to the witness, but always leaves the burden of proof with the government. First, the government must make a prima facie[1] showing of contempt; i.e., that it made an authorized request for information, that the information was relevant to the proceedings, that the information was not already in the possession of the government, and that the witness did not comply. Second, once the government has presented its prima facie case, the witness must provide some explanation on the record for his failure to comply. If the witness fails to meet this "burden of producing evidence," the government's prima facie case is sufficient to meet its burden of proof for a finding of contempt. The witness may meet his burden, however, where, as here, he testifies that he does not remember the events in question. Finally, if the witness meets his burden of production by claiming a loss of memory, the government must carry its burden of proof for a finding of contempt by demonstrating that the witness in fact did remember the events in question, thereby establishing a willful failure to comply.
Note that testifying "I don't remember the password" is enough to activate part two. The supplemental order then goes on to apply this in the only obvious way,
> [first, ] the Government's prima facie case of contempt was largely, if not entirely, uncontested ... [second, ] at the September 30th Contempt Hearing, Mr. Rawls did not testify or call any witnesses, he did not offer any documentary or physical evidence into the record, and the only evidence he elicited was in the form of cross-examination of the Government's witnesses. Crucially, Mr. Rawls offered no on-the-record explanation for his present failure to comply with the August 27th Order... [therefore, ] in light of the Government satisfying its burden of proof, the Court adjudged Mr. Rawls to be in civil contempt of court.
[1] prima facie is a phrase which one might not be familiar with unless one has a philosophy or legal background; it means "at first glance" -- i.e. the government's showing might at a deeper stage be questioned but it has to "look like" contempt in order to start the process.
> Note that testifying "I don't remember the password" is enough to activate part two.
"Bleeping Computer users have pointed out that you cannot match file hashes to encrypted content. The article was updated with a link to court documents from where the prosecution's statement was cited."
And what if you genuinely forget the password to one of your encrypted drive. Couldn't it be used to incriminate you on whatever charge?