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Re:Man jailed indefinitely for refusing to decrypt hard driv... by rayiner on Tuesday March 21, 2017 @12:38AM (#13919905)
The Court's opinion explicitly addresses that (at 18-19). It first recognizes that impossibility of compliance is a defense to a contempt charge. But it then explains why the trial judge reasonably did not buy that argument:

> At the contempt hearing, the Government presented several witnesses to support its prima facie case of contempt. Doe’s sister testified to the fact that, while in her presence, Doe accessed child pornography files on his Mac Pro computer by means of entering passwords from memory. Further, a detective who executed the original search warrant stated that Doe did not provide his password at the time because he wanted to prevent the police from accessing his computer. Doe never asserted an inability to remember the passwords at that time.

Re:Man jailed indefinitely for refusing to decrypt hard driv... by couchand on Tuesday March 21, 2017 @02:14AM (#13920225)
Unfortunately the opinion seems to show serious forgetfulness on their own part. On page 7, "Doe, however, stated that he could not remember the passwords necessary to decrypt the hard drives and entered several incorrect passwords during the forensic examination." These events took place after the original search warrant but before the finding of contempt. It's curious that these facts are included in the background section but not the legal analysis.
Re:Man jailed indefinitely for refusing to decrypt hard driv... by pinum on Tuesday March 21, 2017 @12:43AM (#13919919)
18 months later, though, it is completely plausible that he really has forgot. I don't think I would remember a complex password that I haven't used for 18 months. Hell, I sometimes have to reset simple passwords that I created last month. If you don't use knowledge, you forget it.
Re:Man jailed indefinitely for refusing to decrypt hard driv... by timv on Tuesday March 21, 2017 @12:59AM (#13919979)
Perhaps, but the judge can only make judgements based on the arguments presented.

If the defendant wanted to argue that he no longer remembered the password (but would be willing to decrypt the drive if he could), then that's something that the judge would consider. But a judge can't (and won't) simply say "Oh, maybe he hasn't complied because he just forgot the password. I'm going to let him off"

Re:Man jailed indefinitely for refusing to decrypt hard driv... by michaelmrose on Tuesday March 21, 2017 @03:15AM (#13920390)
Its literally impossible to prove someone has or hasn't forgotten something. You shouldn't be able to jail someone indefinitely for not producing something you can't prove exists.
Re:Man jailed indefinitely for refusing to decrypt hard driv... by timv on Tuesday March 21, 2017 @07:13AM (#13921206)
Yes, but that's fairly well tested ground and isn't unique to this case.

Witnesses (in the sense of being called to that stand in a courtroom) are frequently asked to tell the court what they saw/heard/did, or from where/whom they received information. Refusing to answer may get them pulled up on contempt charges, and if they claim not to remember then the judge needs to decide whether they are lying.

Given the impossibility of proving (in an absolute sense) that the witness does in fact remember (at that exact moment), it's a game that witnesses are likely to get away with (hence the standard "I don't recall" answer from politicians and beuracrats​), but it's not a universal solution to the "I don't want to tell you" scenario.

Re:Man jailed indefinitely for refusing to decrypt hard driv... by michaelmrose on Tuesday March 21, 2017 @02:06PM (#13924628)
I think that the difference is that people are generally good at remembering the details that judges are normally interested in. People are notoriously bad at remembering passwords.
Re:Man jailed indefinitely for refusing to decrypt hard driv... by superflyguy on Tuesday March 21, 2017 @04:09AM (#13920558)
That's not something that's going to trouble US authorities given that the US invasion of Iraq was alleged to have been because the Iraqi leadership couldn't demonstrate that there were no "weapons of mass destruction" hidden somewhere in the country.