[Cryptography] US Case: Infinite Jail Contempt for Disk Crypto, 5th Amndmnt, All Writs, FileVault, Freenet CHKs

[arxlight]

On 30/04/16 17:21, Phillip Hallam-Baker wrote:

> > This, of course, depends on the judge believing in the defendant's
> > resolve.  (Though I recall that defendant walking soon after).

> Well that should not be too hard to prove. In addition to his 5th
> amendment privileges, the defendant's counsel can argue that either the
> information on the disk is incriminating or it is not.
> 
> If the information is not incriminating then there is no reason to force
> him to reveal it.
> 
> If the information is incriminating then the threat of jail is not going
> to be effective as he is certain to go to jail and be forced to sign the
> offenders register which is a life long punishment. The threat being
> used to force him to incriminate himself is less than what he will
> suffer if he does.

And yet, it works.  Often.

Probably because it isn't possible for the defendant to know exactly
when the judge will decide to believe that the defendant has "lost" the
password.  After a few years in the clink with no light at the end of
the tunnel, a 5 year sentence (perhaps even with credit for time served)
might not seem so bad (even if the judge is just weeks away from
blinking first).