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No, you can't. "'A party's inability to comply with a judicial order constitutes a defense to a charge of civil contempt.' Affordable Media, 179 F.3d at 1239." Berland v. The Conclave, LLC, SD Cal Case No. 20-cv-00922-H-WVG (2022) (Order Denying Petitioner's Motion for Order to Show Cause Re Contempt). Which should be obvious, given that the statute you link to explicitly says that refusal to comply must be "without just cause."
Random data is indistinguishable from data encrypted by a good encryption scheme. You cannot prove that a set of random data isn't actual data that has been encrypted, apart from trying all possible decryption algorithms with all possible keys and showing that none of them yield legible results.
This is true in theory, but how true is it in practice for laypeople who are using relatively common software out-of-the-box? My guess is that most common encryption software puts metadata in the clear concerning which algorithm they're using, PBKDF iteration count, and such. I think that's because for most common uses, the model is not that you need an actual blob that is indistinguishable from random. Instead, most uses are more than happy to have it be clear that there is encrypted data, clear which algorithm is encrypting it, and simply relying on the security of the unknown password.
When it comes to government demands to decrypt, generally the State has to go to sufficient lengths to show that there is, in fact, encrypted data and that the individual in question does, in fact, have the means by which to decrypt it. One example argument is, "We've seen this guy unlock his phone. In fact, ten minutes before we arrested him, we have him on video unlocking his phone, then setting it down, appearing to have no cognizance of the fact that we were about to arrest him. Further, he was not able to touch his phone between then and when we scooped it up." I'm not sure whether judges would generally be as, uh, reasonable about this sort of demand when it comes to their inherent contempt power as they are when it comes to requests by the prosecution to compel decryption.
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Defense that it is entirely at the court's discretion to honor.
What stops the judge from saying "Nah, Fuck you, we're going to charge you with contempt anyway"?
The answer is "nothing", you are appealing to a consensus that does not exist.
No, I am correcting OP's incorrect statement of the law.
A higher court is what stops him. "Discretion" does not mean, "I can do whatever I want." Judges are reversed for abuse of discretion every day:
City of Sacramento v. Drew, 207 Cal. App. 3d 1287 (1989)
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As I understand the jurisprudence as laid out in that order, the court decides what is or isn't a refusal without just cause, and though impossibility is of course a defense, the burden of proof is on you to demonstrate impossibility "categorically and in detail".
Of course we're setting up this hypothetical in a way that makes you indistinguishable from someone who does have an encrypted drive. And it seems mighty difficult to prove that this was never an encrypted drive when there is no way for you to do so, by design.
"I've forgotten the password" has almost never worked as an excuse as you know, and "This drive is empty and always has been" I don't think would fare much better. Ultimately it puts you at the mercy of whether the court thinks you're a liar or not. Which is the whole problem here: we are definitely in the realm of small tyrannies.
Thankfully, judges usually have better things to do than throwing random people in the slammer, but I wouldn't say it can't happen.
I don't see why this is any more perverse than any other example of "you can be unjustly fucked if a court makes an erroneous factual ruling against you"
"Is this apparently unreadable hard drive encrypted under a key controlled by the defendant?" is the same type of question as "Did she say yes?" - it is in principle a question of fact, not opinion, with a single correct answer, but the practicalities of determining it are that the jury will be making a subjective determination based on multiple pieces of circumstantial evidence. Courts decide these types of questions all the time, and need to. And an innocent person can be totally fucked if the court gets it wrong.
A world in which nobody could be criminally convicted based on circumstantial evidence is a world in which a lot of crimes are effectively decriminalised.
That's fine in theory, but in practice the government is not actually going to behave as though you're innocent unless you can be proven by circumstantial evidence to have hidden the information. They'll just jail everyone in that situation.
You are assuming that intelligence agencies pay as much attention to burden of proof and presumption of innocence that regular courts do. This is not true.
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I'm not questioning the legitimacy or utility of any and all courts.
It's just that in the particulars of contempt and other such orders, things are configured in a way that makes whims easy to enact and hard to appeal, and thus errors or abuses easier which is what this whole thread is about.
Of course justice has to compromise to practicality, we all know that. But how much compromise is warranted? And who gets to hold the power that results?
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