I thought that if they had a warrant, you had to give up the password, much as you'd have to give up the key to a locked door in your house?
> No person shall...be compelled in any criminal case to be a witness against himself
Courts have previously upheld passwords as self-implicating information, which you cannot be constitutionally compelled to provide.
> in In re Boucher (2009), the US District Court of Vermont ruled that the Fifth Amendment might protect a defendant from having to reveal an encryption password, or even the existence of one, if the production of that password could be deemed a self-incriminating "act" under the Fifth Amendment.
http://en.wikipedia.org/wiki/In_re_Boucher
Boucher ended up having to unlock the hard drive, because he had previously unlocked the drive for border agents. Had he refused, the court likely would have held that he could not be compelled to produce the password or the hard drive contents.
A warrant gives law enforcement the right to gather evidence, but doesn't compel you to provide it. If you won't provide it, they are authorized to take it by force. In the case of encryption, they don't have enough (legal) force to take it. Therefore, they are entirely dependent on the accused cooperating to gather that information, but the accused cannot be compelled to cooperate under the Fifth. This is scary for them, because it means that they can't legally compel you to give up the information, and they can't gain access to it by force. A wholly uncooperative defendant is effectively unassailable.
The US government has frequent shown that they have no qualms against unconstitutionally compelling individuals...
I wouldn't be at all surprised to learn that targets had passwords "coaxed" out of them.
So it sounds like the actual legal question here, of whether the government can compel you to hand over your password in the general case, has never actually been tested?
As I understand it, if he had initially refused to unlock the drive, then he couldn't have been compelled to unlock it again, under grounds that it could be self-incrimination.
That is, while one can prove that there is no physical key to a door on the person, there is no way to prove that one does not know the password.
You can't prove a universal negative, so the only way that becomes a prosecutable offense is if the initial assumption is of guilt rather than innocence, no?
> "Drage was convicted of failing to disclose an encryption key in September." [1]
Though it says that he "failed" to disclose a password when asked. Not clear if he was unwilling or unable, and if such a distinction even matters. (It's unclear if the use of the term "refusal" was an actual action, or a journalistic spin. It might come down to needing to be very careful about word choice in such situations; "I would like to speak with my lawyer first" seems like the most appropriate answer).
It's contrasted with Napoleonic code, in which innocence must be proven. It is or was the basis of law in countries conquered under Napoleon, and/or their colonies (e.g.: Mexico).