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This is an interesting case that highlights the complexities of the digital age, like yesterday’s ruling on GPS tracking without warrant by the police.

If a person was/is under investigation of a crime, a judge could/can issue a search warrant. If the indicted person had say, a safe deposit box or a locker in a bus station, a judge could issue a search warrant that allowed the bank to open the safe deposit box or the police to cut off the lock on the locker or seize the key under a search warrant. On the other hand, the judge as I understand the Constitution couldn’t/can’t compel the accused to open the safe deposit box herself or order her to open it herself for the police.

Unless I’m missing something, wouldn’t forcing her to decrypt her computer or surrender the password be analogous to forcing her to go the bank and open the safe deposit box or the bus station and open the locker?

Much of the discussion has been about what analogy comes closest. Prosecutors tend to view PGP passphrases as akin to someone possessing a key to a safe filled with incriminating documents. That person can, in general, be legally compelled to hand over the key. Other examples include the U.S. Supreme Court saying that defendants can be forced to provide fingerprints, blood samples, or voice recordings.

On the other hand are civil libertarians citing other Supreme Court cases that conclude Americans can't be forced to give "compelled testimonial communications" and extending the legal shield of the Fifth Amendment to encryption passphrases. Courts already have ruled that that such protection extends to the contents of a defendant's minds, the argument goes, so why shouldn't a passphrase be shielded as well?

I’m with the civil libertarians on this one.