This is fascinating. Jeralyn Merritt writes today about a case in which the government got a search warrant to seize a computer that turned out to have its data encrypted. So now the government wants to force the owner to give them the password. Can they do this?
The answer may turn on whether the Judge decides the password should be viewed as a key to a lockbox, in which case there is no 5th Amendment protection, or as a combination to a safe.
While the key is a physical thing and not protected by the Fifth Amendment, the Supreme Court has said, a combination — as the “expression of the contents of an individual’s mind” — is.
Now there’s the law in its infinite majesty. If you buy a safe with a combination lock, you’re golden. If you buy a safe that opens with a key, it’s 20-to-life in San Quentin. I’ll bet this is the kind of thing that mob lawyers advise their clients about all the time. It also sounds like a great premise for an episode of Law & Order.