Comment Re:Beyond the law? (Score 1) 354
So far only the Eleventh Circuit has heard anything relating to the production of passwords and they went with the doctrine of the mental cognition from producing decrypted data more demanding because it is "more akin to requiring the production of a combination". The Supreme Court has found that being compelled to produce the key to a safe was not a violation of the 5th but producing a combination is. I will refer you to this paper which shows why applying the key-combination algorithm shouldn't apply to encrypted drives.
http://papers.ssrn.com/sol3/pa...
I agree with the author's final assessment:
Alternatively, courts could explicitly incorporate interest balancing into the calculus. So the decrypted data could be compelled only if there is a significant state need for compulsion. Drawing this line in practice would not be difficult. Imagine the government subpoenas the accused for the production of decrypted data and the accused moves to quash on Fifth Amendment grounds. Under this approach, the motion would be denied if the government shows it could not realistically obtain the data through investigatory effort. This procedure would not be uncommon, as similar iterations exist elsewhere in criminal procedure. Obtaining a search warrant, for example, requires the government first show the existence of probable cause, and a later determination that cause was deficient may result in excluding any evidence obtained under the warrant.