We just had the thread
where a different lady was ordered to decrypt the contents of the drive.
ahammel wrote:To what extent can the court order you to hand over evidence in the States? To judge from the ruling, you can't be ordered to hand over the combination to a combination lock, because that counts as testimony. Can you be ordered to turn over the key to a conventional lock?
The fifth amendment has traditionally been interpreted rather narrowly. As I mentioned in the previous discussion, you can be forced to give up documents, to provide keys to lock-boxes, to provide your name to police officers when stopped. In civil cases, refusing to testify against an allegation can be taken as an acquiescence to the allegation. If you wish to invoke your 5th amendment rights, you must do so explicitly - merely remaining silent during questioning is not sufficient. You can be compelled to testify against others, and, if granted immunity, compelled to testify about your role in a crime.
The court's opinion is pretty interesting. Evidently, there is a "Foregone Conclusion
" doctrine on when the act of producing documents is testimonial, and thus subject to 5th amendment protection. If there is a "foregone conclusion" that the documents actually exist (i.e. established by other witnesses or evidence), then there is no testimonial involved in producing the documents. However, if they don't actually know that the documents exist, the act of producing them can be considered testimonial, and subject to protection. The court ruled that the government really had no way of knowing if there are actually encrypted files. That seems like a largely reasonable view, I suppose.
I think that the most interesting aspect of the case, however, is that the defendant was
granted immunity with regards to producing the documents (but not from the contents of the documents themselves). The court ruled that this was insufficient, that the immunity must cover both the actual testimony, but also any information derived from it. The court said that if he were to be granted immunity with regards to the contents of the encrypted portions, he could have been compelled to decrypt them. I think this is likely where another court (perhaps the supreme court) would disagree.