(Oh, by the way, the thing called “precedent” that is often confused for “the law” is also highly based on “opinion” …)

“Gonzales said more than 60 times that he “couldn’t recall” certain incidents. His former chief of staff, Kyle Sampson, used that explanation 122 times during his testimony weeks ago.”

http://articles.cnn.com/2007-04-20/politics/gonzales_1_attorney-general-alberto-gonzales-kyle-sampson-senate-testimony?_s=PM:POLITICS 

Now that’s a big Twinkie.

So for example, the government can force you to turn over the maps you keep in your basement.  And if your basement was locked, you could be required to turn over the key.  But they can’t then force you to explain what the different symbols you made on the map mean.

Now, if you had written a legend for the maps, they could demand that you turn it over too.  But if the legend was just in your memory, you couldn’t be required to dictate it to them.

The question is: is a password a basement key or a map legend?

Of course literally, it’s neither.  But nothing about computer software is ever understood literally, because all it is literally is a bunch of electrons flying through circuitry.  What matters is the metaphor we use to represent what’s happening in the computer.  And the answer to the question hinges on what metaphor we use.

You could say the password is a metaphorical map legend, used to make sense of a metaphorical map.  You need the encryption key to interpret the meaning of the encrypted data.  You have the map before you, available for examination, but it’s meaningless to you until it’s interpreted using the appropriate legend.

Or, you could say the password is a metaphorical key, used to unlock a metaphorical encryption door standing between you and the metaphorical map.  In this reading, the true map is sealed behind a door, and it’s not available at all until the door is unlocked.

Both readings are equally imaginary, and it’s no surprise that the government is going to chose to imagine the one which serves them best.

fascism! fascism!

ah… much better.

I also don’t see how there’s any difficulties here arising from treating digital information as analogous to information stored in any other medium.

That’s not what I’m arguing.  I’m arguing about the legal status of an encryption key vs. an actual physical key.  In the former case, testimony is exactly equivalent to the key itself.  In the latter testimony about the key is different from the actual physical key (obviously).

There aren’t enough details in the story to make all the wild assumptions you infer that I’m making.  In the case that the government cannot prove there is incriminating evidence in a safe but they suspect there is they cannot compel you to testify as to where you might have hidden the key.  My argument is that in such a case you should also not have to give up an encryption key for the exact same reason.

(And in the case of mortgage/financial fraud, too generous; taking peoples houses — those fuckers need to be waterboarded.)

The problem in this case from the prosecution perspective is that they don’t have a big enough crowbar.

The justice system is set up so the government must follow certain rules to convict someone of a crime.  The rules are in place because the government is much more powerful than an individual and must exercise that power with caution.  If the government breaks the rules to get a conviction, it doesn’t matter whether the person is guilty, because the conviction is automatically unjust. 

That doesn’t necessarily mean the 5th applies to this case, but its an important distinction.