jangusa

The production of decrypted plaintext by means of an encryption key stored in your mind falls squarely within the rule on production of documents from U.S. v. Hubbell, discussed in jpol's comment above. It therefore seems quite likely the state will lose on appeal.

Yep.

There's another important reason that the Jones case is not as good as it sounds. The Court only partially decides whether the government can engage in GPS tracking without a warrant.

In order to determine whether the government violates the 4th Amendment, the Court must answer two questions. (1) Did the government activity (i.e., attaching GPS tracker to a car) qualify as a "search" or "seizure"? (2) If so, was the search or seizure reasonable?

In the Jones case, the Court ONLY answered the first question, because the government based its entire case on the argument that attaching a GPS tracker is not a search. The Court found that attaching a GPS tracker to a car does indeed qualify as a search, but did not determine under what circumstances it might be reasonable to conduct such a search without a warrant. So, in a future case, the court might determine that it is reasonable to search (i.e., attach a GPS tracker) without a warrant because, for example, the car might be moved before the warrant could be approved. In fact, it is already the case that cars can be searched without warrants in many cases where houses, personal belongings, etc. cannot be.

(Note that the Court uses the phrase "reasonable expectation of privacy" extensively, but this actually has nothing to do with the reasonableness of the search. It only determines whether a search occurred.)

1 (re: Crooked Account Books) - if the government knows you have accounting books, they can force you to turn them over. You must provide them with physical access to the books. In your example, you could take the hard drive out of your laptop and hand it to them. However, if your hard drive was encrypted, and you had the encryption key memorized, you would not have to tell them. If the judge hearing your case did not understand the intricacies of Fifth Amendment doctrine, like the judge in this case, he might order you to decrypt the hard drive. In this case, your lawyer would ask the judge to stay (i.e., delay) his order to give you a chance for interlocutory appeal.

If the judge did not grant the stay, you could turn over the key but explain that you were not waiving your Fifth Amendment rights. Then when you were found guilty, you could appeal, argue that your Fifth Amendment rights were violated, and get your conviction overturned. Alternatively, you could not turn over the key, go to jail for contempt, and wait for your lawyer to appeal the contempt finding and get you out of jail.

2 (re: password vs. physical key in secret place) - in some cases, the act of producing a physical key may actually be protected under the Fifth Amendment. If the police can show that you know the key's location, then by forcing you to produce the key they are not forcing you to give any testimony, and you have no Fifth Amendment protection. However, if they ask you for a key but can't prove that you have it, they are asking you to create implicit testimony. The implicit testimony is "I know where the key is." If this testimony would end up incriminating you, the it is protected by the Fifth Amendment and you don't have to produce the key.

Providing the password to a safe that contains incriminating documents actually is testimonial in nature because it requires you to disclose information you have in your mind (see above). As such, any information that the government obtains by compelling you to give them the password cannot be used against you in a criminal trial. The judge in the case being discussed here got it wrong, and his decision will be overturned on appeal if it goes up to the Supreme Court.