Fifth Amendment shields child porn suspect from decrypting hard drives

I don't know, though I believe so. Burning your keys seems the most likely to count (unless done by some automated mechanism). The time thing I'm not so sure would count though.

A) Are the encrypted files actually evidence of an offence -- without decrypting them how can that argument be made?

B) Do you encryption keys count as evidence if the passwords in your head don't, and if the passwords in your head do count as evidence then how can not handing them over not count as obstruction of justice?

C) Is there a more general case that can be made such as you don't have the requisite mens rea to be guilty? I believe the terms go something like:

"Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsified, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under Title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both."

If you just have a general commitment that you're not going to turn something over if under duress, does that count? And, if you can't do it and actually are guilty, is obstruction going to get you a lesser penalty anyway?

I imagine this is why encryption doesn't count as obstruction, since you have a general commitment that your stuff be difficult to read by anyone, rather than a specific grudge with the police.

By way of mitigating your risk, you might even be able to tell the police, in recorded interview, that you needed access to a computer in the next - whatever time period - to preserve the evidence that will prove your innocence. I doubt some low-level investigator, who probably doesn't understand the first thing about computers, is going to get you access to a computer in a reasonable time-frame, so by the time they've decided one way or the other it will be too late. I don't know how interview recordings work out in terms of evidence that the defence has access to though.

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It's really something I suspect you'd have to talk to a local lawyer about if you wanted a reasonable answer.

> what a dangerous precedent you are setting, PD friends acting as judge and jury.

Nobody is acting as judge and jury. PD's are charged with zealously representing their clients just like any other lawyer, and the ones I know are extremely committed to their jobs (many turned down six figure jobs in private practice to work for state government salaries and defend poor people). They fight hard for their clients, even the "clearly guilty" ones. But that doesn't mean they're not allowed to make observations about the nature of the world.

> Laws change, and there are often subtleties to a law

We're not talking about subtleties here. We're talking about people who rob a liquor store, have people see them do it, have video evidence of them doing it... That's the bread and butter of the criminal justice system.

When you see edge cases in the news and rant about how broken the system is for not taking even more measures to protect the innocent, remember that the vast majority of people who go through the justice system really did do the crimes they're accused of committing, and that factual state of affairs influences how the system is structured. If a lot more of the people who come up before judges each day were innocent in fact, the system would be structured differently.

The trouble with fighting for human freedom is that one spends most of one's time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all. -H. L. Mencken

In the UK, that would qualify as destruction of evidence 9/10 times. Source: Looked into doing something similar to protect confidential information and sought legal advice first.

Unfortunately it seems that discovery and testimony have become increasingly conflated over time. I don't buy the arguments that compelling someone to decrypt something is discovery rather than testimony. The precedent that tips the scale between discovery and testimony hinges on whether the prosecution "knows" that the data is there, which is bogus to begin with precisely because the supposed data is encrypted. They couldn't possibly "know" what is there without compelling the defendant to decrypt. And if there is already "sufficient evidence" to tie a defendant to supposed encrypted data, as has come up in certain cases, than there is no need to compel the defendant to decrypt in the first place. Provide your "sufficient evidence" to the court and let the judge and jury do their jobs.

I think precedent leaned this way precisely because people understood that otherwise, guilty people would definitely walk. And they couldn't have that, even if it meant that the spirit of the 5th amendment was violated.