If you can be jailed indefinitely for not decrypting a drive then can't you be jailed indefinitely for not remembering your password? That sounds fair.
At the contempt hearing, you are allowed to testify that you do not remember your password, and it puts the burden of proof on the government to prove that you secretly remember your password and are lying to the court when you say that you don't. Of course if you do testify this and you are lying, then that's a perjury charge -- which means that for example if you have told your lawyer that you do remember your password, your lawyer cannot knowingly allow you to lie on the stand and could be disbarred etc. if you do. But assuming that you're not lying and so forth, you can just say "I can't comply with this court order because I don't remember the password" and that will suffice for your defense at your contempt hearing unless the government can meet a strong burden of proof that you secretly do know your password and are lying about it, which you are of course entitled to counterexamine and poke holes in.
Rawls did not testify, at his contempt hearing, that he did not remember his password. He did not testify at all at that hearing. He said prior that he doesn't remember his password to the police, and he has said it afterwards to the media, and he might have even said it to a different judge in these weird follow-up hearings--but he didn't say it at the contempt hearing and as I understand it he didn't appeal this hearing directly to say "well shoot I didn't realize I was getting jailed on a technicality, let's re-do this hearing so that I can testify that I forgot it properly."
There are many reasons that Rawls might not have testified; possibly he has a very good lawyer who is concerned about some bigger issues that Rawls might have to address if he testifies at all; possibly he has a very bad lawyer who did not know that this is how forgot-my-password law works and did not read the Supplemental Order the judge wrote explaining why Rawls is being held in contempt of court. I do not know why he did not testify this. However, testifying this is sufficient to be not held in contempt of court, unless the government can meet a stiff burden of proof that you are lying.
> However, testifying this is sufficient to be not held in contempt of court, unless the government can meet a stiff burden of proof that you are lying.
Which in essence is impossible in most cases, unless you are stupid enough to actually tell people that you refuse to decrypt the drive and those can then testify against you.
It's all a matter of perception. It just shows how much a few words can matter a lot in a legal context, and how by saying you don't remember the password, you will walk, whereas by saying you won't give it up, you'll be held in contempt for 2+ years rotting away in a cell.
Perhaps he could say he doesn't remember the password in a few years? "It's been years, it was a complex password containing a lot of characters, and I no longer know what the password is" -- that doesn't seem unreasonable.
You never have to make a statement to the police, and this is why it's part of the Miranda warning. There is no per se right to remain silent before a judge.
The fifth amendment allows one to not be whitness against oneself, but that doesn't allow you to ignore the judge.
And if you raise the fifth as a response and the court does not believe it applies, you get to argue why it does before another judge, which is where this man is now.
A forgotten password is not part of the current debate.
It is the government's job to prove you remember it. They have the burden of persuading the court that you don't remember it. This is spelled out explicitly in the Supplemental Order issued by the judge, PDF freely available at:
What is at stake is a burden of evidence production. The difference between production and persuasion, in a court room, is a distinction both of quantity and quality. You "produce" single pieces of evidence, whether weak or strong -- then the totality of all of the pieces of evidence, evaluated together according to their strengths, "persuades" the court. "Produce" is quality-agnostic and refers to single pieces of evidence; "persuade" or "prove" refers to all of the evidence on both sides and weighs them by their quality.
And what's really at stake is that your lawyer, at a contempt hearing, cannot merely claim, "Well, your honor, the prosecution has not proven that my client is definitely able to fulfill the order, because they have not disproven every possible reason why my client could not fulfill the order." The reason that this is not enough is that it is asking the government to prove a negative, "you cannot possibly have any excuse."
Instead the procedures that courts use to decide these cases require the defense to identify specific reasons why the defendant cannot fulfill the earlier order, and then the burden falls on the prosecution to prove that those specific reasons are BS. And for this purpose they need to produce some evidence -- it doesn't need to be strong, persuasive evidence -- that the defendant cannot fulfill the order for that reason. Because it does not have to be strong or persuasive, a statement of testimony is taken at face-value as sufficient.
The only attack the government can make at the evidence-production level is "even if this evidence were 100% persuasive the defendant would still be able to decrypt the drives", so the evidence has to have some clear logical relation to the excuse. But obviously if your sworn testimony that you cannot decrypt the hard drives were 100% persuasive, you would not be able to.
It's still the government's job to prove you remember it, but you need to produce some sort of pertinent evidence (no matter how flimsy) that you don't, so that the court even evaluates this defense in the first place.
It's not inconceivable that the courts could prove that the defendant could access data. The data could be on an encrypted cloud drive that the defendant decrypts when he accessed his email this morning.
Or he already stated to Witness that he keeps his bitcoin keys there and he has been trading bitcoins lately according to Exhibit J.
Look, it's not inconceivable that competent prosecution could prove that every murderer wasn't acting in self-defense, either. What's conceivable has little bearing on courtroom procedure.
What matters for procedure is, what's reasonable. It's reasonable that someone who claims they killed in self-defense would have to present evidence that they felt they were in serious danger. It's reasonable that someone who claims they were not sane at the time they committed a robbery, should have to explain with evidence the causes and circumstances of their insanity that distinguish their mental state from other mental states that we'd treat normally, like that of simply being greedy. These are routine situations where the burden of proof is on the defendant to mount the corresponding "affirmative defense." They arise because of a more fundamental principle that if you did fail to obey the law, but you want to argue that it's OK that you failed to do so, then you should be able to tell the court why you failed to do so, so that we can indeed evaluate whether it's OK.
The only difference here is that insanity, self-defense, entrapment and the like -- traditional affirmative defenses -- are self-evidently very exceptional circumstances. Forgetting is, by comparison, quite routine. Therefore the courts are actually incredibly lenient, putting only a weak burden of production on you so that the question of "why can't you?" is answered up-front, and then this reason will be evaluated under the assumption that you're innocent until proven guilty.
Thanks for sharing that link, something I knew about but not by name :-) Also thumbs up for Rocket Jump
In a related tangent when I setup the WiFi for the Perth Artifactory Hackerspace, I told everyone (via email) the password was on the back of the door. Which had a sign that said "KEEP DOOR CLOSED" :-) Fortunately the first person to try it, did figure it out.
