The less emotive case would be the hard drive contained bank statements for tax avoidance - and I would still think that a court should be able to compel someone to produce that.
If that's the case the files aren't needed, they want to see the drive contents on the off chance of finding some other evidence.
It's a foregone conclusion technically that the illegal content is on the hard drive. His guilt is not a foregone conclusion (not in the US anyway).
If you visit https://www.justice.org/sections/newsletters/articles/fifth-... and search for "foregone conclusion" you will get some good info.
The file hashes basically takeaway any good self-incrimination argument he could make and there might also be evidence of further criminality on the hard drive.
Sorry, but legally, the latter should be the only standard of truth. If he exposes himself to a higher standard of guilt, then he is incriminating himself.
To my mind private spaces (be that my house or my hard drive) should have some protection, but it seems reasonable that that is less than my personal freedom.
I have no issue with a warrant being issued on a balance of probabilities basis in order to find evidence to convict a person based on beyond a reasonable doubt.
And all this ignores the possibility of discovering further crimes and accomplices by investigating the contents of this drive - if there is a balance of probabilities likelihood of find those on the drive I don't see any problems with compelling this to be revealed.
The problem with this is it isn't consistent with how the law works in other cases. For example, A judgment of 'guilty' is considered absolute, not probabilistic.
then prosecute him and be done with it. Anything else is either a fishing expedition or we don't all agree that the files are definitely on the system... in which case it's still a fishing expedition.
hashes can be inaccurate, it isn't a foregone conclusion in reality, just in their opinion.
Not really, no. The chance of multiple hash collisions on a set of arbitrary images is a near impossibility.
I told this story before, but I once read an article about a police officer who said it was impossible for another person to have logged into an account because it was password protected, when we know that's not even close to being true.
impossible and improbable are not the same thing, and I sure as shit don't feel comfortable making the case that it's 100% locked in because of a hash.
The requirement should be for them to look at the actual content, not the hash.
That's not even the same realm as this case:
> The Forensic examination also disclosed that Doe had downloaded thousands of files known by their “hash” values to be child pornography[0]
Thousands of hash collisions would require prior knowledge of the values and a concerted effort to deceive. It would be more realistic to say that human perception is broken when looking at the media than it is to argue with the mathematical reality at play here.
> The requirement should be for them to look at the actual content, not the hash.
Refusing the evidence known to exist and definitely covered by probable cause is why the defendant is still in custody.
[0] https://arstechnica.com/wp-content/uploads/2017/03/rawlsopin...
So using the law to defend yourself doesn't really apply here.
> Thousands of hash collisions would require prior knowledge of the values and a concerted effort to deceive. It would be more realistic to say that human perception is broken when looking at the media than it is to argue with the mathematical reality at play here.
This confidence is why my anecdote applies. That confidence is flat out scary when you hear people in law use terms like "impossible" or "virtually impossible" when speaking about things that are not.
This makes it sound more like it's a fishing expedition for evidence to use in other investigations, or to find evidence for a more severe punishment, both of which one can morally agree or disagree with, but is it how justice should work? I honestly don't know, but I think probably not.
It's a detestable crime, which is exactly why we must not allow the law to be bent out of shape because of that, as the results will be used in other cases where our moral compass maybe wouldn't sway our judgement as much.
The only justice we can enact, flawed at rational reasoning as we are, is a dispassionate justice. One where we as much as possible defer to the few rational facilities we have. Weak, but nonetheless, logical and rational thinking, is what we must base our arguments upon, as we are so easily swayed by our instinct to protect our children at any cost, often with little regard to what consequence it might have in a distant future.