> If it is a foregone conclusion that the documents exist, the court can legally compel you to turn them over.
Are you sure? That would imply that you could be compelled to produce documents that are known to exist but were stolen from you.
It seems like a faulty premise. If they don't know where the documents are then how could they know they haven't been stolen or destroyed?
It's the same problem with encryption keys. Just because you had it yesterday doesn't mean you have it today. People actually lose or forget things, especially under stress.
That's one of the main purposes of protection against self-incrimination -- so that the government can't claim you know something that you don't and then hold you in contempt for not telling them.
Yes. A quick google for "foregone conclusion doctrine" will turn up a bunch of fairly-recent news about this.
> It's the same problem with encryption keys. Just because you had it yesterday doesn't mean you have it today. People actually lose or forget things, especially under stress.
Yes, and that's part of the problem. I'm not saying I agree with how all this works, just stating that's how it is.
There are limits, of course. If the court cannot establish that you know (or at least knew) the password/phrase/key. "I forgot" can certainly be a legitimate defense, but it of course depends on whether or not a judge believes you. If we could use "I don't remember" as an unquestioned excuse, we could get away with anything.
> That's one of the main purposes of protection against self-incrimination -- so that the government can't claim you know something that you don't and then hold you in contempt for not telling them.
That's not what we're talking about here. We're talking about things the government affirmatively knows that you either have or know. Unfortunately, of you no longer have or know that thing, the burden is on you to prove that you don't, which is difficult.
> Yes, and that's part of the problem. I'm not saying I agree with how all this works, just stating that's how it is.
You have to keep in mind that judges make rulings that conflict with the rulings of other judges all the time. It means one of them is wrong and it takes a higher court (or legislative action) to sort it out.
Pointing to lower court rulings in the news doesn't mean the issue is settled.
> If we could use "I don't remember" as an unquestioned excuse, we could get away with anything.
That is obviously nonsense. People are regularly convicted without being compelled to say or do anything. The government simply has to prove their case without the defendant's testimony.
> We're talking about things the government affirmatively knows that you either have or know. Unfortunately, of you no longer have or know that thing, the burden is on you to prove that you don't, which is difficult.
But that's the point. They should have to prove that you have it, not that you had it. And when the thing is the contents of your mind, it's impossible for them to prove that without your cooperation, and impossible for you to disprove it.
The burden that something can't be proven in a criminal proceeding is supposed to fall on the government, not the accused.
You're forgetting that the courts are human and would be sympathetic in this case. If it couldn't be shown that you have access to the documents or you could show they were stolen then you would be fine.
> Just because you had it yesterday doesn't mean you have it today
Right, which is why I prefaced the discussion with the situations where the police can prove beyond a reasonable doubt that you posses the key/password. We can make it more direct by arresting you immediately after you prove on video that you're capable of decrypting the documents.
> can't claim you know something
Right, but the difference is we're talking about a case where they can prove you know something. We're firmly in foregone conclusion territory.
> You're forgetting that the courts are human and would be sympathetic in this case. If it couldn't be shown that you have access to the documents or you could show they were stolen then you would be fine.
But that's the whole problem. How are you supposed to prove that you don't have something? It's completely reasonable that someone can have stolen it from you without you being able to prove it.
They can prove that you do have it by finding it in your possession, but if they could do that then they wouldn't need you to tell them where it is. If they don't know where it is then they can't know whether you have it or not.
> Right, which is why I prefaced the discussion with the situations where the police can prove beyond a reasonable doubt that you posses the key/password.
That's just assuming the conclusion.
Proving beyond a reasonable doubt that somebody knows something is next to impossible. You can have them on video entering the correct pass phrase and it only proves that they knew it when the video was made, not that they still remember it now.
> It's completely reasonable that someone can have stolen it from you without you being able to prove it.
I agree and if I was designing the legal theory I would make sure that the burden of proof is on the person claiming an other has knowledge.
> the correct pass phrase and it only proves that they knew it when the video was made, not that they still remember it now.
Right, which is where reasonable doubt comes into play: if the video was months ago it's completely reasonable to forget a password -- if it's two hours later they have a much tougher case to make about spontaneous amnesia.
Applying the 'you can't possibly prove knowledge under any circumstances' argument would be absurd in any other case.
"Did you know she was under 18?"
"No your honor, I forgot, it had been a few weeks since I saw her ID."
> Right, which is where reasonable doubt comes into play: if the video was months ago it's completely reasonable to forget a password -- if it's two hours later they have a much tougher case to make about spontaneous amnesia.
You're confusing less likely with unreasonable.
A pass phrase long enough not to make the whole question irrelevant is hard to remember.
You may have it in short term memory until it gets displaced by "oh crap I need to hire an attorney and a bail bondsman and call my boss and explain this to my wife" type issues. You may be able to remember it sitting in a familiar environment surrounded by your stuff but not in a jail cell without any of those cues.
It's completely reasonable to forget something you knew five minutes ago. It happens all the time.
Haven't you ever walked into a room and been unable to remember why you did? And that isn't 128 bits worth of context-free random data.
> "Did you know she was under 18?"
> "No your honor, I forgot, it had been a few weeks since I saw her ID."
I'm not sure this is making the point you want it to. The real targets of statutory rape laws are pedophiles who rape eight year olds, and in those cases it isn't a question of memory. You may not have remembered whether the child was 8 or 9 but you couldn't reasonably have thought they were above the age of consent. Which is why nobody objects to putting those pedophiles in jail, or to the laws that make it happen.
It's the cases where there could be a legitimate confusion that create exactly this problem. You can't tell if someone is one year above or below the age of consent just by looking at them, which is why those cases are extremely controversial.
How is it absurd that you could forget someone's age? Do you know the exact age of everyone you've ever been to the birthday party of? You probably knew on the day of the party.
Are you sure? That would imply that you could be compelled to produce documents that are known to exist but were stolen from you.
It seems like a faulty premise. If they don't know where the documents are then how could they know they haven't been stolen or destroyed?
It's the same problem with encryption keys. Just because you had it yesterday doesn't mean you have it today. People actually lose or forget things, especially under stress.
That's one of the main purposes of protection against self-incrimination -- so that the government can't claim you know something that you don't and then hold you in contempt for not telling them.