It's not fantasy. Fantasy is a world where you can tell the police "I know how to open that thing that you have a lawful order to investigate, and you don't, so any crime of which I'm suspected is now uninvestigatable, nanny nanny boo boo". The analog with other difficult locks is just fine; the fact that these locks are so good that they are unbreakable doesn't really change anything about the accused's obligation to cooperate with lawful orders.
The protection in the Fifth is to prevent a perverse system of coerced confessions, where innocent people can be placed on the stand and forced to falsely confess before the court. This has been expanded to preclude other types of unreliable confessions. Impeding the execution of a legitimate warrant, even when that warrant is issued in order to obtain evidence to prosecute oneself, is not protected by the Fifth Amendment.
The Fifth is not there to allow criminals to get away with things, antagonize the police, or make it hard for society to maintain order. It's not there because keeping "one innocent person out of jail is worth 50 guilty going free" or similar sentiments that are frequently expressed. It's there to prevent a common corruption in the justice process.
>Why should the innocent defendant be made to languish in jail indefinitely because the police/prosecutor are inept and incapable of doing their job without reverting to unconstitutional tactics?
Because he's violating a lawful order. If the accused wants to challenge the legality of that order, he can file a lawsuit to do so (and from the article, it sounds like he has). But unless the judge supervising that lawsuit issues a stay on the order in question, the accused is still obliged to comply and can be detained based on his/her refusal to do so.
Reformation of the contempt of court power is probably reasonable, however. This guy should be charged with obstructing justice and tried instead of kept in prison indefinitely. It'd probably be good to set an upper limit of something like 12 months on contempt of court detainments.
Except it seems there is good case law to show that in fact suspected cannot be forced to open a combination lock, as it falls under fifth amendment protection. They can, however, be compelled to provide a key if it is a key-based lock. This applies similarly to biometric-based locks.
It's hard to believe that an encryption key is any different than a combination lock in this "encryption is like a safe" metaphor.
Could it just come from our particular choice of words?
An encryption key sounds closer to a safe key than to a combination lock. A small broken analogy later, the judge rules that encryptions keys are keys, and the defendant may be compelled to provide them.
Just because we called it a a "key", instead of the more accurate "combination", or "code".
Law can be difficult because tiny nuances like this can sometimes matter. It's usually not because judges are too inept to comprehend the subject matter, but because they feel that the laws still on the books require them to undertake a stringent interpretation that has an effect most people would consider undesirable. In some highly technical cases, while judges can generally be taught the meaning, their unfamiliarity with the subject matter may cause them not to fully appreciate the effects and ramifications of some of their rulings.
Legal professionals tend to be technically minded and frequently accept conclusions that do not serve the interests of justice (except in the theoretical, abstract context of a perfectly-reflective, well-functioning republic) in order to comply with a strict reading of the text of the law.
That's a double-edged sword. It provides some protection against judges who would "legislate from the bench" (i.e., change the effects of the law based on their personal values instead of the values the community has codified through the legislature), but it also frequently restrains what would be considered a rational and fair implementation of the law in order to serve an ideological commitment to the particularities of wording.
Pretty much everything involved in attempting to create a generally applicable, fair legal system is a delicate balance. Too much familiarity with a subject and the judge can be accused of bias; too little and the judge may not understand the impact of their rulings. Too much commitment to legal wording can lead to some plainly undesirable conclusions where the real people and businesses before the judge become the collateral damage of a thought exercise, but insufficient commitment to implementing the community's values instead of one's own can lead to judges whose influence becomes oppressive or despotic. It comes down to needing judges with good judgment.
Constitutional reforms may be reasonable to modernize the system to be more responsive to the community's values and less dependent on the technicalities of outdated verbiage (the All Writs Act, which is referenced in this case, was codified into law 227 years ago), now that we live in an age of instant global communication and industrialism. Many such reforms could happen at the state level.
Gosh, compelled is such a nice euphemism for "psychologically and physically brutalized until complicit". I don't think it is right to "compel" you to produce anything, key nor combination.
I think it's pretty clear that the parent is accusing the state of using torture to coerce compliance, which is a strong indication that the state itself is no longer legitimate.
I think you make the mistake of thinking that people oppose all state violence. Many people approve of some state violence in the name of maintaining societal order, but oppose torture. And I would posit that coercive incarceration is a form of torture.
It is a mistake to believe that people are ideologically consistent. And I would be hard pressed to believe that torture is not more extreme or less legitimate than other forms of violence.
Thank you. That pretty much sums up what I was getting at. I understand the need for violence when one man attacks me or my family. And I understand the need for violence when one man attacks any human around me.
These people break the Golden Rule and remove themselves from its binding contract of being treated equally. BUT, they still deserve to be treated fairly.
Sometimes, even you can get them to see the error of their ways, and use their past to create a better future for others, and all without violence. But asking someone to give you a variable to a mathematical algorithm that he owns is absolute horse shit.
This is just a very abstract way to say that you don't like some of the things that the state has characterized as crimes. That's fine, and you can utilize the organs of representative democracy to make your will on that point known (though a world where only violent crimes are recognized, like you're suggesting, is not usually considered appealing).
However, attempting to trivialize the issue by abstracting it out to "giving a variable to a mathematical algorithm" is not persuasive. Any sort of cooperation could be extrapolated to a similar point of abstraction that makes it sound absurd; in fact, furnishing a physical key to a physical lock could be described with no modification to your terms. In that case, you're ultimately asking for the pattern needed to actuate the pins such that they stick up in the lock mechanism and cause it to disengage. That's just "providing a variable to an algorithm"; the physical key itself is an implementation detail.
If you do not believe the court should have the power to compel some types of individual cooperation with the police, you should take that up with your local legislator. The Fifth Amendment itself provides no such protection. It prohibits the government's usage of only a very specific tactic: mandatory testimonial self-incrimination. Allowing the police to execute warrants and complying with lawful orders pursuant to the state's interest in enforcing its laws is not testimony.
I'm sorry, but I didn't conduct any sort of ideological flame war. I simply stated my stance on the issue that the thread was about. Other commenters took up the mantle of twisting my words and forcing me to more clearly explain myself.
I didn't realize "gtfo" was too uncivil for HN. I generally do not use such language here, but...
Be civil. Don't say things you wouldn't say in a face-to-face conversation. Avoid gratuitous negativity.
I did not break that rule. I was not gratuitous about it and was trying to end an argument.
I understand that you think you know what this site is for, but my original comment was in line with the subject matter and was not flamewar bait.
And while I'm sure he does a fine job, I'm contesting his assessment of my motivations and insinuating that I broke any rule. You really like to drag things out. Why don't you just drop it?
>I am stating my views on state violence, and what power the state should have over others. And the state should never use violence, physical or psychological, to "compel" people to do anything.
This allows only for crimes of commission. Crimes of omission, like negligence, failure to pay taxes, etc., could not be prosecuted against this, because the state would be using its monopoly on violence to compel compliance with laws which impose affirmative requirements on individuals instead of merely enforcing laws that proscribe individual behavior.
Are you arguing only against indefinite detention on contempt charges or are you arguing against deploying state force to compel any type of active compliance?
>If they are a danger to society, then they can be locked away, but if they are not provably a danger to society in an uncompromised court of law, then that's it. Indefinite incarceration without legitimate reason is torture.
This isn't indefinite detention without reason. Habaes corpus is fully satisfied here. The government has given the detainee a rationale for his detention and, in this case, they've provided a remedy that he can employ to end his incarceration at will.
For the third time, I believe that the virtues of indefinite detention via contempt-of-court are dubious and that reforms are welcome. I'm not sure what you think you're disagreeing with here.
>Are you telling me if I have a problem with the way my state is run I should call my local Republican state representatives and not discuss my views on a mature open forum? Gtfo with that shit, this isn't your forum my dude.
Expressing your views to your state representative (not sure why the party of that representative is significant) is not mutually exclusive with expressing your views on HN. I was suggesting an option by which you could attempt to enact your views in order to clarify that those views do not reflect the current state of the law and would need legislative action to be realized. That has nothing to do with where you're allowed to express them.
If a citizen does not want to pay taxes, and if the taxes are fair and used efficiently, then they still should not be compelled but they can be denied all government aid as well as access to certain infrastructure, or possibly even deportation. None of these things compel someone to do anything.
If the person wants to live on their own, in the wild, then there is no reason our government needs to collect taxes from them. But do I believe someone should be jailed for not giving our country money annually to be spent on things they don't support? Absolutely not. I don't even agree with sales tax. Traditionally that tax is paid for by vendors, but in modern times it has been passed on to the consumer.
And this "if you don't like it, go somewhere else" mentality most folks have about things like taxes is something an abusive partner would say. Sometimes people can't feasibly go somewhere more in line with their beliefs, but they still choose to live peacefully on their own terms.
And believe me, I have attempted to communicate with my representatives and it is fruitless and now I receive spam mail I can't seem to get rid of. Even when I get direct responses, they are empty and simply say, "I get you feel this way, but this is how I feel."
It sounds like you believe the only legitimate state is one where a criminal suspect can say "no thanks" and walk away in response to a court summons or arrest warrant. What brings anyone to walk into a courtroom to face charges at all, other than the knowledge that they will be tied to a chair and wheeled in if they refuse?
Of course the state uses violence to extract compliance with social norms. That's what it's for. The much more interesting questions are about which norms it should enforce (criminal codes) using how much force (sentencing, prison conditions, police rules of engagement, etc) and subject to what controls (due process, civil rights, etc).
This seems like more a flaw in the legal systems desire to make decisions based on analogies, rather than a reason for the right to exist.
There's a public good from the right to avoid self incrimination, it's less clear what the public good of protecting people's right to keep content hidden in the face of a court order.
Your first citation has nothing to do with disclosing combinations. It's a question of whether documents that would be protected by the Fifth Amendment if they were in the clients' possession are likewise protected when they've been transferred to the clients' attorney's possession. SCOTUS ruled that the documents would've been ineligible for Fifth Amendment protection because they are evidentiary, not testimonial, so it didn't matter whether or not the attorneys or the clients physically possessed them.
Quoth Justice White from that decision:
> Within the limits imposed by the language of the Fifth Amendment, which we
> necessarily observe, the privilege truly serves privacy interests; but the Court has
> never on any ground, personal privacy included, applied the Fifth Amendment to
> prevent the otherwise proper acquisition or use of evidence which, in the Court's
> view, did not involve compelled testimonial self-incrimination of some sort.
The second case also does not involve either the disclosure of combinations or compelled opening of locks. It affirms that compelling a person to sign a document granting banks permission to transmit any account records which may exist to the government does NOT violate the Fifth Amendment because it is not testimonial self-incrimination.
The third case appears closer to the mark in that it discusses the way in which produced documentation can be employed to incriminate a witness who produced it, but that case specifically seems to involve the interaction of the statute under which the accused was granted immunity. It also deals with a witness who produced documentation pursuant to a subpoena and a grant of immunity provided in connection with that, not an accused who is the subject of the investigation.
I'm not sure where you pulled these citations, but none of them appear to have any relevance to the assertions you've made.
Some research seems to indicate that the question of whether a defendant must supply the combination to a safe has never been directly considered by the Supreme Court, though it's been mentioned, tangentially, as a distinct thing from using a key to "open a strongbox", with the implication that disclosing a combination may be protected but opening a safe with a key wouldn't be. This analogy is employed in one place in the decision issued in the third case, but it's only for illustrative effect.
I'm sure that in the not-too-distant future we'll see a case about this make it up to the Supreme Court (possibly even this one). My expectation is that SCOTUS will rule that it is proper to compel the defendant to decrypt the disks.
> Because he's violating a lawful order. If the accused wants to challenge the legality of that order, he can file a lawsuit to do so (and from the article, it sounds like he has). But unless the judge supervising that lawsuit issues a stay on the order in question, the accused is still obliged to comply and can be detained based on his/her refusal to do so.
So here's the thing about that. If he's filed an appeal on a lawful order, he should not have to sit in jail while the appeals process is working its way through. That alone is coercion. That corrupts the legal process. If he has a legitimate claim that the appeals court doesn't immediately throw out, then the lower court is putting pressure on him to not wait for the appeals court's decision by depriving him of my freedom while he waits.
Yes, the appeals court judge could issue a stay on the order. The fact that he/she hasn't indicates to me that the appeals court would prefer to use their own form of coercion and judicial corruption in the hopes that Rawls will just get tired of sitting in jail eventually and comply.
And that's the problem with contempt-of-court. If you can be held indefinitely without being charged with anything, that's a corruption of the legal process. Someone being held in that manner for long enough will likely do anything to get out of that situation, even confess to a crime that carries a sentence of a defined length, because knowing you'll be out in 10 years (or whatever) might be better than being held indefinitely.
>And that's the problem with contempt-of-court. If you can be held indefinitely without being charged with anything, that's a corruption of the legal process. Someone being held in that manner for long enough will likely do anything to get out of that situation, even confess to a crime that carries a sentence of a defined length, because knowing you'll be out in 10 years (or whatever) might be better than being held indefinitely.
Yeah, as I said in my original post, I agree with this. There needs to be a limit on contempt-of-court.
The flip side, however, is that someone who does something that would carry a large prison sentence would be incentivized to violate orders, spend one year waiting out contempt charges, get charged with obstruction and sentenced to 3-5 years, making a total of 4-6 years jail time. That could be a big win for the criminal if complying with the government's order would allow them to prove a crime that carries a much stiffer sentence.
I think I'm ok with that. If the prosecution can't compile enough evidence on their own with the defendant's court-ordered, self-incriminating "help", I don't think they deserve a conviction.
Assuming the court order is lawful, I think a shorter sentence just for violating the order is a fair compromise. Obviously no law is perfect, and there will be exceptions, though.
I'm not a lawyer, but doesn't he also have the option to comply the order to decrypt, and then ask that the evidence should be supressed because the order contradicted the 5th amendment? That would provide a separate route for the constitutional challenge which would not require him to be in prison in the meantime. (Well, presumably he would be in prison for a child pornography conviction instead, so maybe it's equivalent.)
"The protection in the Fifth is to prevent a perverse system of coerced confessions, where innocent people can be placed on the stand and forced to falsely confess before the court."
That's what's happening here. It has led to an extreme corruption of justice where a defendant's rights are violated until he testifies against himself (which also violates his rights, so a Catch-22 situation). He is compelled to testify against himself (5th). He was not given a speedy trial (6th). He was punished in a cruel and unusual manner with life imprisonment despite not being convicted (8th). He is guilty until proven innocent.
All because he refuses to talk. This particular defendant clearly does NOT have the right to remain silent. In which case, that must not be a right. In which case, the 5th amendment either doesn't exist or is being violated.
We don't even know if this guy has the password. We don't even know if there is any actual data on the drives at all. He hasn't been convicted of anything. Yet he's spending the rest of his life, potentially, in jail because he refuses to be coerced by the corrupt government or does not have the information they want.
>He is compelled to testify against himself (5th).
The courts do not agree with that interpretation. Defendants and witnesses are required to comply with subpoenas and warrants and produce documentation on demand, unless they can satisfy the court that production of said documentation is potentially inculpatory and that providing it rises to the level of testimonial self-incrimination under the facts of the case. That's going to vary and the accused may win a lawsuit to confirm that that is indeed what's occurring in this case. At the moment, it's an unsettled question.
>He was not given a speedy trial (6th).
He hasn't been arraigned, so of course he can't be tried. He's been detained for contempt. If he wants a speedy trial, he can comply with the court order that allows the investigators to continue with his case, and he can go free in the mean time.
Perhaps contempt-of-court needs to be reworked such that indefinite detention under it is not allowed, but that's not a constitutional issue. Contact your representatives and let them know you want this law passed.
>He was punished in a cruel and unusual manner with life imprisonment despite not being convicted (8th).
He can end his detainment at any time by complying with the court order. He is willfully keeping himself imprisoned. He has not been sentenced and, theoretically, will be free to go once he complies with the court's order. It is very likely that he has chosen incarceration and a constitutional challenge because he prefers the remote possibility that he may win this challenge to the near-certainty of a felony sex crimes conviction if he complies.
>He is guilty until proven innocent.
It may be that some type of check on extended contempt detainments is appropriate. For example, convening a jury to evaluate the accused's ability to comply every 90 days may be wise.
But practically speaking, he is not guilty; he is being detained because he refuses to comply with a court order. If the court is unable to enforce its orders any time a person says "Sorry, I don't remember how to do that", its authority will vanish.
I understand the contention is that decrypting disks is testimonial self-incrimination. That's the issue before the court, and for whatever reason (which could probably be looked up), the courts hearing that issue declined to stay the original order while the issue pends.
I personally do not find that argument convincing, as the contents of the disk need not, and indeed cannot, be altered by the accused to plant a "false confession" merely by unlocking them. Any evidence revealed by the decryption would've been as it was before any threat or incentive was issued.
Courts have ruled on a variety of occasions that complying with requests to furnish evidence which may be inculpatory does not by itself rise to the level of testimonial self-incrimination. Imagine the fallout from a world where the courts did indeed rule that the defendant was not required to comply with any subpoena, warrant, or order that may reveal criminal behavior. Our system would fall apart right away.
The 5th is not designed to allow people to destroy or hide evidence. It's designed to prevent inquisitions, where a person's guilt is determined based on the linguistic trickery and/or the direct threats made by an inquisitor, instead of an evidentiary standard that must be proven. The 5th amendment still allows for confessions and it still allows the police to require accused individuals to furnish evidence and documentation, it just provides a protection to check the prosecutor's incentive to force false confessions.
>All because he refuses to talk. This particular defendant clearly does NOT have the right to remain silent.
There is no absolute "right to remain silent" in the United States. There is only the right to refrain from testimonial self-incrimination. Judges can and do regularly order persons to provide legitimate answers to questions, orders, and subpoenas if they cannot satisfactorily demonstrate how responding to them could reasonably jeopardize this right.
>We don't even know if this guy has the password.
True, there's no way to know that with certainty. However, there is a way to know beyond reasonable doubt. His regular use of the computer necessarily required him to unlock the disks. It's clear that at the time the order was issued, he knew how to do it.
Perhaps he can make the case that sixteen months after the fact, he is no longer able to recall the passphrases, and maybe that's his strategy; at some point, as time wears on, this will have to be considered credible.
> It's not fantasy. Fantasy is a world where you can tell the police "I know how to open that thing that you have a lawful order to investigate, and you don't, so any crime of which I'm suspected is now uninvestigatable, nanny nanny boo boo".
And your alternative to this "fantasy" is that you go to jail for the rest of your life if you refuse to comply? I find that far more ridiculous.
Yes, effectively. The alternative to effectively giving oneself a life sentence is to comply with the order and allow the government the access they need to proceed with the criminal case. This man's incarceration on contempt charges will end on the day that he complies with the lawful order.
Rawls is rolling the dice here. He's hoping that he can press this issue on constitutional grounds and that he'll prevail, which will prevent the investigators from accessing the contents of his disk and, in all likelihood, prevent his conviction. If he wins on the constitutional matters, he'll be able to walk free as a bird when the case is decided (and may end up being entitled to compensatory damages). That's the outcome he's hoping for.
If he loses the constitutional case, he will probably decrypt the disks and allow the justice system to finish processing his case so that he can get an end date on his incarceration. In all likelihood, complying with the order will lead to his criminal conviction and a sentence of at least several years. After that sentence completes, he will be a convicted felon, and in most states, he will have to register as a sex offender. He will have to live under a variety of restrictions related to those statuses for the rest of his life.
Rawls's hope is that the court will rule that he cannot be ordered to decrypt his disks on constitutional grounds. This is all a wager on his part. As his incarceration on contempt charges is essentially voluntary, characterizing it as an "indefinite" or "life" sentence is improper. He has no sentence. To go free, he need only comply with the lawful order that was served upon him (of course, he will probably be arrested on charges related to the data on his computer shortly thereafter, potentially before leaving the jailhouse), or convince a higher judge that the order should be stayed pending the outcome of the lawsuit challenging its validity.
Another potential avenue to freedom, at this stage, would be convincing Congress and the President that the law should be modified so that either a) the judge's order is invalidated by new statutory requirements and the constitutional matter is no longer relevant; or b) the crime being investigated is no longer criminal.
> "I know how to open that thing that you have a lawful order to investigate, and you don't, so any crime of which I'm suspected is now uninvestigatable, nanny nanny boo boo"
So "I know stuff about a thing that you have a lawful order to investigate, and you don't, so any crime of which I'm suspected is now uninvestigatable, nanny nanny boo boo" is fine, real and serious, but
"I know a thing that would allow you to open that thing that you have a lawful order to investigate, and you don't, so any crime of which I'm suspected is now uninvestigatable, nanny nanny boo boo" is laughable?
Should you be also compelled by indefinite arrest to disclose location of the body of your victim (when other evidence against you is insufficient)? Because it looks mighty similar to disclosing password to encrypted evidence of the crime.
>So "I know stuff about a thing that you have a lawful order to investigate, and you don't, so any crime of which I'm suspected is now uninvestigatable, nanny nanny boo boo" is fine, real and serious
No, this isn't fine. If there is a lawful order to gather evidence related to the crime, the accused can be compelled to comply. For example, the accused can be compelled to provide documentation under subpoena, submit to police interrogations, be a witness in court, etc.
They cannot be compelled to testify against themselves. When someone invokes the Fifth Amendment, the presiding officer must decide whether there is a reasonable claim that responding to the question or demand as posed may incriminate that person. If the presiding officer is not satisfied that such a connection exists or that the inculpatory value of the response does not rise to the level of testimonial self-incrimination, they can, and do, order the person to comply. If the accused feels this order has been wrongly made and that their Fifth Amendment rights either were or could be violated, they are free to challenge the order in court, but that doesn't mean that there won't be consequences for non-compliance while the challenge processes (a judge overseeing the challenge may or may not issue a stay or restraining order to limit such consequences).
>Should you be also compelled by indefinite arrest to disclose location of the body of your victim (when other evidence against you is insufficient)?
No, because that unquestionably rises to the level of testimonial self-incrimination, whereas granting access to something found during the execution of a legal search warrant does not.
>Because it looks mighty similar to disclosing password to encrypted evidence of the crime.
Ultimately the courts will have to decide whether this is similar enough or not. Under the current law, the answer is non-obvious, and it must be established by the conventional legal process, which yes, is indeed pain-stakingly slow. But there is no exceptional injustice underway here. This is the way the system works. It's not always pleasant, but then, neither is the real world.
If you want to discuss reforms that could require all cases to reach a final resolution within 12 months of their initiation, I'm all for that. Dragging these proceedings out over 5-10 years is very frustrating. But again, the backlog and slow conventions of the courts are a different matter than whether or not this man's constitutional rights are being violated (except insofar as these apply to the 6th Amendment, which guarantees the right to a speedy trial; it does not, however, guarantee the right to a speedy appeal), whether his detainment qualifies as "torture", or whether some other grave miscarriage of justice is occurring here.
> They cannot be compelled to testify against themselves.
In my joking statement (that mirrored yours) I was referring to exactly that. Giving police information that currently is only inside a mind of a suspect. Not documents, not physical keys, not anything else.
I don't care that you can be compelled to provide documents. Which is silly by itself. Whole business of law should expect no cooperation from the suspect and should accept help from him with suspicion. Giving him opportunity to provide documents is giving him opportunity to forge some. Giving him opportunity to provide password to a machine may give him opportunity to give one that will cause the machine to overwrite the data you are trying to gain access to. Giving him opportunity to confess without double checking every bit of information he discloses with hard evidence is providing him the opportunity to take fall for someone else's crime.
> But there is no exceptional injustice underway here. This is the way the system works.
So the system is just temporarily exceptionally unjust. Unless you can somehow say that jailing a guy indefinitely for failing to disclose information only he poses, at the same time having not enough evidence that he committed any crime, is somehow just.
> The protection in the Fifth is to prevent a perverse system of coerced confessions, where innocent people can be placed on the stand and forced to falsely confess before the court.
Do you have a source for this claim? Compelled confessions are already invalid. I'm skeptical that this was the primary purpose of the amendment.
Compelled confessions are not "already invalid" separate from the Fifth Amendment. To the extent that statutory restrictions prevent it, that arises from the same impulse of the Fifth and is most likely primarily intended to be supplementary thereto.
The right against self-incrimination is intended to establish a system of justice that requires prosecutors to obtain real proof rather than making it dependent on manipulating the accused, who may well be innocent, into believing that a confession is the only way out (that is, confessions extracted by coercion).
Similar rights existed in multiple state constitutions prior to the ratification of the federal constitution. Note also that incorporation didn't begin to occur until the late 1800s-early 1900s, so independent state statutes protecting this right would've been necessary, and their existence doesn't mean that the Fifth didn't also target this protection.
>The Fifth Amendment [...] was created in reaction to the excesses of the Courts of Star Chamber and High Commission. [...] These courts utilized the inquisitorial method of truth-seeking as opposed to the prosecutorial, meaning that prosecutors did not bear the burden of proving a case, but that sufficient "proof" came from browbeating confessions out of the accused. [...] With the abolition of the Courts of Star Chamber and High Commission, the common law courts of England incorporated this principle of nemo tenetur—that no man should be bound to accuse himself. By the 18th century, English law provided that neither confessions coerced during the trial nor pretrial confessions obtained through torture could be used. This was based on the belief that coerced confessions were inherently unreliable.
The difference is that if a defendant is forced to decode a unique cipher they've made up, there's no independent way to verify its contents. You can't prove that an investigator didn't say "Look, the only way you're going to ever get out of here is if you 'decode' this and make sure it says that you committed the crime."
Whereas with a well-understood, industry-accepted cipher, you can use the key and obtain the evidence exactly as it sits independent of the defendant's disposition and without requiring any unique or special tooling to be provided by the defendant. There is no opportunity to influence the contents of the decrypted disk. Ultimately, encryption may end up strengthening the prosecution's case because it can't reasonably be argued that any evidence tampering or manipulation occurred prior to decryption.
When the defendant either discloses the passphrase or enters it to unlock the disks for the police without disclosing it, the disk will either decrypt or not, and when it decrypts, it will either contain the evidence or not. Nothing said to or done by the defendant since the evidence was seized can have any influence on the contents of the disk. That means the Fifth Amendment's purpose of preserving a prosecutorial justice system dependent upon the use of objective proof rather than individual manipulation remains intact.
It would be interesting to see how this would've played out if Rawls had been using something like TrueCrypt's hidden container encryption, which uses steganographic techniques to allow the user to generate distinct blocks of cleartext from the same block of encrypted data. In that scenario, theoretically, there is no way to prove that the hidden container exists and that you have not fully complied with the police's request to decrypt.
The protection in the Fifth is to prevent a perverse system of coerced confessions, where innocent people can be placed on the stand and forced to falsely confess before the court. This has been expanded to preclude other types of unreliable confessions. Impeding the execution of a legitimate warrant, even when that warrant is issued in order to obtain evidence to prosecute oneself, is not protected by the Fifth Amendment.
The Fifth is not there to allow criminals to get away with things, antagonize the police, or make it hard for society to maintain order. It's not there because keeping "one innocent person out of jail is worth 50 guilty going free" or similar sentiments that are frequently expressed. It's there to prevent a common corruption in the justice process.
>Why should the innocent defendant be made to languish in jail indefinitely because the police/prosecutor are inept and incapable of doing their job without reverting to unconstitutional tactics?
Because he's violating a lawful order. If the accused wants to challenge the legality of that order, he can file a lawsuit to do so (and from the article, it sounds like he has). But unless the judge supervising that lawsuit issues a stay on the order in question, the accused is still obliged to comply and can be detained based on his/her refusal to do so.
Reformation of the contempt of court power is probably reasonable, however. This guy should be charged with obstructing justice and tried instead of kept in prison indefinitely. It'd probably be good to set an upper limit of something like 12 months on contempt of court detainments.
I'm not a lawyer.