> So here's my concern: guy's now been in jail without charge for 18 months. The prosecutors say his guilt is a foregone conclusion

That's not what the "foregone conclusion" stuff is about, at all. They're not saying "it's obvious he's guilty so the 5th amendment does not apply." The 5th amendment doesn't apply to handing over evidence, period. It's about the circumstances under which handing over evidence (which ordinarily does not implicate the 5th amendment) involves implicit statements or assertions by the defendant (which does). Read the subpoena example in the opinion, it clarifies.

Take this comment as what I think 5th amendment should imply, not how it is currently applied by the courts.

The concept of forgone conclusion is very weird. Imagine that I tell someone that I maintain a diary with log of all the events everyday. Then I tell this to my friends, family, (the police), etc.

Let's say the prosecution can prove that I was at a spot where something illegal happened. If they knew I wrote a diary everyday, they can compel me to produce my diary, which will then be used against me (if needed).

If on the other hand, I tell everyone (and the police) that I have photographic memory and remember anything I see and do, that information is protected by fifth amendment. So in this case, I won't provide something that will be used against me.

It is very weird that when the plain words of the amendment read "compelled in any criminal case to be a witness against himself", it is only thought to include literal production of testimony from mind as confession, while on the other hand, the first amendment is not read literally to allow only freedom of (say) owning a press, the press being a physical printing press.

What is weird is basing a legal system around the constant re-interpretation of documents written hundreds of years ago and the implication that subtle nuances in ancient wording reveal a thus far hidden intent that somehow predicted today's technological advancements, society, their relevance and how these texts should be applied in today's light.

None of that is why I'm bringing it up. I bring it up to point out that we have no reason to believe that the prosecution won't request indefinite detention until he gives up the password, even if it might be impossible for him to do so.

Good point, I definitely can't remember my more complex passwords for more than a month or two if I'm not using them.

It is also not too hard to essentially forget a complex password by either 'blanking it out', or associating it with multiple similar paswords during recall.

There are no easy solutions to encryption in this context, apart from what it clearly tells us: That society needs to focus on prevention and care, and not rely on policing and punishment to keep society safe as much as now.

Civil contempt is coercive, not punitive. In theory, he gets released when it's clear that he won't decrypt the drive even if indefinitely incarcerated. So in principle, in the event you describe, we let him out.

Of course, knowing that he actually has forgotten the password is somewhat tricky, so what would actually happen is anyone's guess.

He goes free in 14 years or sets a new record. Up to the judge.

http://abcnews.go.com/2020/story?id=8101209&page=1

That guy sets a new record for cussedness.

> what should we do?

Release him and pay millions in compensation for violating his writ of Habeas corpus.

A court granted him a writ of habeas corpus? When? That changes everything if true, but I'm pretty sure you're mistaken.

That's not what Habeas corpus is. Contempt is 100% lawful.

Not in the US: http://www.nytimes.com/2011/12/02/us/senate-declines-to-reso...

Perhaps the FBI have unlocked it, but them having the password doesn't prove that the accused had it. My guess is they wouldn't be pushing on with the case if they didn't know for sure that access would 'demonstrate' criminality. Similarly I imagine the accused knows that if they admit access they're going to spend a lot longer incarcerated. An impasse for our times

That is precisely the scenario that actually would violate the Fifth Amendment, because it forces him to be a witness against himself.

So if, for example, a person had illicit photos/documents in a safe, then the police couldn't ask them for the combination? Or if they gave the combination the evidence then retrieved would be inadmissible?

Surely it's the pre-existing evidence that [potentially] stands against the accused, not their "speech" that enables access to that evidence.

Who does such an interpretation of The Fifth protect?

As the courts have interpreted it, 5A protects you if they can't even prove the safe is yours, or if otherwise admitting that you know the combination or that you know what's in the safe would result in incriminating testimony. 5A doesn't apply here because they know the device is his, and that prior to his arrest he had regular access to it. It's not incriminating testimony, it's delivery of evidence in a criminal trial subject to a lawful subpoena.

Delivery of evidence is delivering the hard drive; changing the state of the evidence is a concretely different thing.

It amounts to interpreting the existing evidence for law enforcement.

> I think we can assume the FBI has been running a common passwords/dictionary attack with common password symbol substitutions for the last 18 months

I would like to believe they do... But I don't think they'd bother with that.

How many 20 characters passwords could we try in 600 days ? And by imaging the original drive unto multiple others ?

I mean 18 months. It's a lot.

Not worth the resources though.

Well, certainly not if the judge is willing to allow indefinite detention without trial. That's one of the key concerns I have with this case. I'm not seeing presumption of innocence play out here.

The west used to mock and deride the USSR for this kind of thing.