In Colorado, a woman being charged with fraud has been compelled by a judge to decrypt her hard drive. The woman, in arguing against this action claimed that the Fifth Amendment protected her from self-incrimination. The judge found against the woman, stating that since she had already admitted to the existence of the electronic documents, she could be forced to produce them.
As expected, I believe that there's some room for improvement on both sides of this case. I believe the judge is incorrect in his judgement that a person can be compelled to produce any evidence, even though I understand why he could come to this conclusion based on current case law (which I believe to be flawed). I also believe the defendant is wrong on several counts. One obvious count being that she has even openly discussed the case at all [she admitted to the existence of the documents!].
The Bill of Rights are not meant to be a list of rights that are given by men to men. The Declaration of Independence and the Bill of Rights are linked by a core concept - a concept that we are 'endowed by [our] creator with certain unalienable rights'. The Bill of Rights embody into law that those natural rights, which we possess by our very existence, shall not be infringed by government.
In declaring independence from England, the United States of America stated that they had the right to abolish government which deprived them of these natural rights and form a new government to protect them from that deprivation. We would do well to remember this during the execution of our own government over ourselves, as we protect individual rights, we protect the rights of ourselves.
Take the First Amendment (as this lady should have). It states that we have freedom of speech (and as been held up many times - freedom of something also can mean freedom FROM something - thus the right to remain silent). This is not a right that was handed from the government to the individual. It is an ability, a natural extension of the person-hood, that the government may not take away. A person can not or should not be compelled to speak. I personally would go so far as to say that the government has no right to compel a person to act in any way, shape or form - which leads to a discussion about the right to sit-in on public by-ways.
This ability to remain silent is a very simple right to utilize - just shut your mouth. The government has certain guidelines whereby they can hold you against your will for the purpose of investigation and non-interference, but they have guidelines - and you can sit in a holding cell while they rummage through your belongings. This is definitely the tactic to take in any criminal investigation. Note that the fifth amendment also applies here, in that the government may not deprive you of 'liberty' without due process of law.
The right against self-incrimination was and is an extension of the right of freedom of speech. Reading through history, it seems to me that the point was to ensure the spoilage of evidence obtained through coercive measures.
In this particular case, where the government knows that there is evidence against the defendant, and they are attempting to 'force' her to produce access to that evidence, I think they're mistaken in what they claim can be done. To compel her to produce the necessary information, they would have to lock her up forever. At some point in that time, she will likely forcefully or absentmindedly forget the information she's been asked to produce, and there would be no route to obtain the information. She could claim immediately that she no longer remembers what the key to the information is. Depending upon password complexity and the amount of time between when she's used it last, it may even be a believable claim. How can locking someone up forever to compel them to provide detailed evidence be proper due process?
The government should utilize the woman's previous statements as evidence of the documents. A jury should be directed what assumptions they should make regarding the fact that she does not wish to produce them -- allowing negative connotations toward what they think the documents might contain. There is already case law that allows for these assumptions.
To go further than this? I think we've begun a slippery slope..
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