Comment May be deadly... (Score 1) 469
Ah, to be young again!
While the article you link too was quite informative on the court issues surrounding encrypted drives, the matter is not anywhere near closed in that case. I suspect that one may go all the way to the SCOTUS, although even if they do say the court can compel testimony, then it appears to contain some specific issues such that it doesn't clearly say that courts can compel a defendant to provide a password just because the drive is encrypted.
If you read the reasoning from judge Sessions, who said the court has the right to compel the defendant to decrypt the drive, the court has that right only because the police had foreknowledge of some of the contents of the drive.
The distinction here is fairly subtle, but the crucial legal point appears to be the interpretation of the "reasonable particularity" requirement that applies when government demands the "testimonial" production of evidence. Crudely put, the government can demand that you produce that bloody knife the police saw you run into the woods with, but they can't insist that you turn over any objects you may have around the house that would prove you guilty of a crime. In one case, they're just insisting that you provide the thing they intend to show the jury; in the other, you're supplying the information that helps them convict you.
Too me, as a non-lawyer, the police already saw the "bloody knife" at the border check so can compel the defendant to produce it to show the jury. If they just see an encrypted hard drive they don't have any foreknowledge of evidence that may or may not exist on that drive, so cannot compel the defendant to produce a password.
I think that is where the Fair Use comes into this case particularly well. The acquisition of a copy of an original work for the fair use of determining that another student has produced an identical work.
The teacher is not making any money off this, nor is there a reasonable expectation that the acquired work will be distributed. It is only being used as evidence.
What hath Bob wrought?