But there isn't. If police go to a judge and show probable cause, they can get a warrant and break into that locked shed they think had evidence. A warrant doesn't help against an encrypted phone. Not that I agree with Vances position mind you.
If the police can describe what they are looking for on the encrypted volume and get a warrant for it then as per the fourth you provide the item or go to jail for contempt. ("We want the spreadsheet describing the fraudulent transactions") There was a case recently that ruled this way.
If they can't do that then it's a fishing expedition and you can't be compelled to decrypt the volume. There was another case that ruled this way.
Both are completely in line with the fourth amendment and IMHO correct.
However, I think that in the case of a password or passphrase (e.g. something that you know) that would trigger decryption of such a spreadsheet you can refuse to give that up under the Fifth Amendment under current caselaw.
I think that part is up in the air and will probably be decided by the supreme court sometime in the next few years.
Encryption on a per file basis is somewhat interesting. You've provided the item requested but do you have to provide it in an understandable format ? An interesting analogy would be if you had a document written in a language (say shorthand) only you could understand, could you be compelled to provide a translation ?
I believe judges have compelled people to surrender decryption keys.
It is in concept no different to having a magical safe which can't be opened by any method except the owner's key. The court does have the authority to compel you to surrender that key (or go to jail for contempt).
Of course we all know this is really about fishing expeditions and not warrants issued on probable cause.
> I believe judges have compelled people to surrender decryption keys.
Doesn't seem to be a widespread practice. As far as I can see, the only Federal Appeals court case to have confronted the issue ruled against compelling a suspect to decrypt their own laptop.
> It is in concept no different to having a magical safe which can't be opened by any method except the owner's key. The court does have the authority to compel you to surrender that key
It is different, but only because you have the explicit right to remain silent. The US government can legally compel you to do lots of things, but not talk (or otherwise communicate information that's potentially against your interest...generally).
But what about a safe? Isn't that the same... And if safes are required to have a back door, what keeps it out of the hands of theives.. and when does a bank vault differ from a safe? So you want high profile theft to be made easy just to make investigations easier? I don't think so. Rarely will an investigation come from or hinge on the data on a phone alone, or should it.
If the government weren't trying to run illegal phone searches and broadly collecting data, then Apple and Google wouldn't be under consumer pressure to encrypt. Not to mention a lot of said pressure came from people in the government.
