Comment by andylei | Hacker News Reader

Comment by andylei | Hacker News Reader

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> even if police were aware of the existence of specific documents, you might still be able to use the Fifth Amendment to prevent decryption

not if it knew that these documents were under your control and were incriminating. what exactly suggests your reading? the opinion was pretty specific about how the government could not prove the existence of any specific incriminating files on the defendant's drive, and thus, it was not a foregone conclusion

> the murder case ... possession of those files alone would not constitute a crime

whether the possession of the files is in and of itself a crime is irrelevant to the fifth amendment. the only thing that matters is whether your testimony can be used to incriminate yourself.

> Given the dicta in this case, however, it is arguable that, even in such a scenario, a defendant would be able to prevent decryption, thus creating an inconsistency with Fricosu

Author of the article disagrees. From the article:

> Also note that the court’s analysis isn’t inconsistent with Boucher and Fricosu, the two district court cases on 5th Amendment limits on decryption. In both of those prior cases, the district courts merely held on the facts of the case that the testimony was a foregone conclusion.

I understand that this case was decided on grounds consistent with Fricosu, and that the court held that the testimony was not a foregone conclusion and therefore the court could not compel decryption. I am not disputing that that is the holding of this case.

However, in addition to that, the court notes that there are two reasons why the Fifth Amendment prevents compelled description. Besides the foregone conclusion doctrine, there is discussion such at 22: "the decryption and production of the hard drives would require the use of the contents of Doe’s mind and could not be fairly characterized as a physical act that would be nontestimonial in nature. We conclude that the decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files." This to me implies the court's belief that the act of production would be testimonial because it would imply that Doe possesed and had access to incriminating files. Since possessing and having access to child pronography is a crime, that alone--that act of him affirming that he had access to such files by providing a decryption key--would incriminate him. By implication, this would not be the case if possession of certain docuemnts was not itself a crime, yet these documents could be incriminating.

The court spends 2 paragraphs discussing this, but I think it is not inconceivable that this sort of argument could be applied to other cases where the foregone conclusion doctrine might otherwise be succesfully applied to compel decryption, since ostensibly any 1 of the court's two points could be used to prevent compelled decryption. I wonder if this conclusion is based solely on the nature of the crime alleged here, or would be applicable to other crimes where merely showing that you have possession to access to incriminating documents is not itself a crime, as in child pornography.

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