It's a variant of what's called "rubber hose cryptology": sometimes it's technologically a lot easier to just beat the password out of someone (smacking the soles of one's feet with a rubber hose apparently being a rather effective technique).
I draw the line using a "rag doll" model. They can compel fingerprints, physical keys, DNA, etc. insofar as they can manipulate your limp unresitive (albeit uncooperative) body to take fingerprints, extract keys from pockets, snip a hair, extract a blood sample, etc. They cannot, however, compel you to act on their behalf and against your own interests - to wit, they cannot demand you speak (type, write, press buttons) words the whole point of which can and will be used against you. A fair argument may be made for compelling you to provide the key/combination to a safe, but only insofar as they CAN tear the safe apart with blowtorches & diamond saws if you don't cooperate. But when it comes to the state's evidence hinging entirely upon the defendant's cooperation, no - that's why we have the 5th Amendment (gov't cannot compel one to testify against self).
Being ordered to produce documentary evidence is not the same as being compelled to testify against yourself. Defendants are ordered to produce evidence all the time in the form of subpoenas.
Could you not then argue the same for data encryption? Bruteforcing it would be the equivalent of a blowtorch in that case. Would that not then mean that they can compel you to give the key/password?
A blowtorch can open such a safe in <1 day. Depending on the encryption, cracking it in a year might be impressive. And that assumes they can prove it's even there.
We'll figure out how to read people's minds before some TLA brute-forces a volume encrypted with layered AES-Twofish-Serpent. If you're going that far, you might as well just dump the 5th Amendment now.
But when it comes to the state's evidence hinging entirely upon the defendant's cooperation, no - that's why we have the 5th Amendment (gov't cannot compel one to testify against self).
And really, doesn't that mean it (whatever is obscured by a lack of cooperation) shouldn't be considered a crime? Kind of by definition?
Not if they find a way to get to it and it incriminates you.
otherwise, lack of coooperation because you are exercising your rights is not supposed to be used as evidence of a crime.
not letting the police into your home is not in any way considered valid criteria for a judge to issue a search warrant, as i understand it.
> A fair argument may be made for compelling you to provide the key/combination to a safe, but only insofar as they CAN tear the safe apart with blowtorches & diamond saws if you don't cooperate.
Interesting argument.
Suppose I build a safe that costs $100 million to break open (because I spent $200 million of my ill-gotten money to hide $300 million more in ill-money).
Now you've found my safe during your tax evasion investigation, but you don't have close to $100 million in your budget. So you don't really have the ability to tear the safe apart. So they tell me I have to give them the combination.
I don't think cost has anything to do with it. If they really want it that badly they can do their best to open it. My due process is more important than their budget.
Beware unrealistic hypotheticals. (Say, what's the cost to build such a safe?)
Short of dismissing the question out of hand, the point remains that it is still a mere matter of money - something which can be soaked out of taxpayers as needed. Even if we're talking a small jurisdiction with grossly insufficient funds, I'll meet your hypothetical with one where the US Military is invited to have a whack at it - and they can whack pretty hard. It's just a matter of money, and for all practical purposes through history that's been enough to crack any safe. ...and with that kind of money in that safe, I'm sure you could resolve the problem. Short of a scenario where forcing the safe would provably destroy evidence, or delays cause grave bodily harm, they can put the safe in the evidence warehouse and indefinitely assign someone to resolve the issue, while you cool your heels in Graybar Hotel until they open it or you save taxpayers the cost of doing so.
This in contrast to encryption, where any idiot can pick a good algorithm with a high-bitcount high-entropy key which could not be cracked using the resources of the universe. This isn't a hypothetical, this is the OP case. Here, the prosecution truly does hinge on the defendant incriminating himself: no cooperation = no conviction.
If you can prove a safe, like encryption, can't be cracked short of universe-scale efforts, I'll change my position.
This is a very clear and compelling (so to speak) way of thinking about the problem, and one I don't think I've ever heard before. Is this an independent invention of yours or is there literature to be found on the "rag doll" model?
I draw the line using a "rag doll" model. They can compel fingerprints, physical keys, DNA, etc. insofar as they can manipulate your limp unresitive (albeit uncooperative) body to take fingerprints, extract keys from pockets, snip a hair, extract a blood sample, etc. They cannot, however, compel you to act on their behalf and against your own interests - to wit, they cannot demand you speak (type, write, press buttons) words the whole point of which can and will be used against you. A fair argument may be made for compelling you to provide the key/combination to a safe, but only insofar as they CAN tear the safe apart with blowtorches & diamond saws if you don't cooperate. But when it comes to the state's evidence hinging entirely upon the defendant's cooperation, no - that's why we have the 5th Amendment (gov't cannot compel one to testify against self).