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'Sorry, I've forgotten my decryption password' is contempt of court, pal – US appeal judges

dan1980

"The poster seemed to be suggesting that anyone over 50 is less likely to have been exposed to IT technology . . ."

Without arguing this, it's not really the point in this case. If you can find a judge who doesn't understand what a password is, then I will show you a judge who is senile beyond the ability to perform the functions of their office.

It is well-enough established that a person can be compelled to produce a key to a safe but not a combination.

Many people have argued how this distinction should be applied in the digital world but one tack is to say that passwords shouldn't be protected by the Fifth amendment because they can't be compared to combinations of safes. The reasoning there is that there isn't a strong reason to compel someone to reveal the combination of a safe because the safe can, generally, be accessed with the assistance of locksmiths.

It's an open area of discussion and debate but I would suggest that, logically, the ability of Law Enforcement to access a safe means there's also no good reason to compel someone to produce the key either.

So why the difference? If both a key and a combination are conveniences for the Government surely production the them should be treated the same under the Fifth Amendment.

The reason they aren't can only be because of the nature of what is being demanded: a physical object vs the contents of someone's mind.

There are only two ways out here - either the entire contents of someones mind is covered by the Fifth Amendment or only some parts are.

To my point about the technical knowledge of the judge, it's worth noting that it doesn't matter if the combination lock on a safe is a multiple-dial lock, a single-dial lock or even a keypad and it doesn't matter if the safe door is locked by bolts on one side or all around and it doesn't matter what the bolts are made of or whether they are mechanically or electrically driven - or how hard the safe is to crack or how long that will take.

In other words, the specific safe construction and lock mechanism is irrelevant to the Fifth Amendment question of whether the combination for is protected or not.

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