That second scenario has always fascinated me. What's the burden of proof for contempt of court? Forgetting a password seems plausible to me. Anyway, reminds me of this reddit post: https://www.reddit.com/r/IAmA/comments/afib1/truecrypt_and_t...

What if the software on the phone, hypothetically was able to detect you beeing in distress and would stop complying to even the correct password if you are clearly coerced?

It may or may not be testimony. The Wikipedia example you’re referencing turns on the fact that knowing the password to the account proves ownership or control of the account, which itself may be a fact relevant to the charges. For example, if the account is connected to know money laundering. Turning over the password to a phone may or may not reveal similar information. If the phone was found at a drug stash house, knowledge of the password reveals a connection to the crime. If it’s just your phone, and there is no doubt it’s your phone, knowledge of the password doesn’t in and of itself reveal anything.

Testimony is stuff you’d tell a jury. In the bank account example, you’d tell the jury: this account was used by the criminal, and the accused knew the password, it must be his account. You wouldn’t tell the jury “the accused knew the password to what was undisputedly his own phone.”

> What if the person being ordered to hand over the password says "I forgot"? How do we know if they have genuinely forgotten the password?

I'm curious what case law there is there for this situation.

I change my passwords fairly frequently using a password generator, so if I don't use the password regularly, I forget it quickly. If someone brought me an old laptop of mine, it's more likely than not I genuinely wouldn't remember the password for it.

Also, there's the situation where someone isn't sure if the order to give their password is legal, so a court battle ensues for a year, but then even if they lose at the Supreme Court, what if in that year they forgot their password simply because they hadn't used it in so long?

The same thing that happens when you make any excuse for not complying with a court order: a judge or jury decides whether or not they believe you. There is occasionally a gray area, but most of the time lies are obvious.

If you attend a trial, you'll hear a lot of things you either do or don't believe, and not many will be gray.

If an otherwise normal person claims to have forgotten the passcode to their phone that they used every day, few judges would buy it.

With regards to "state of mind" evidence, the general distinction that has been applied to other things, and one which I think makes total sense, is that state of mind evidence is protected when the existence of the knowledge itself is incriminating. If someone left a phone at a murder scene, the fact that you know the password to the phone is itself incriminating. On the other hand, if it's undisputedly your phone, and police are just looking for what's inside, then ordering you to provide the password is no different than ordering you to provide the key to your desk drawer.

There isn't a supreme court precedent yet for whether forcing someone to disclose a password is equivalent to compelling testimony. The 11th circuit court of appeals says it is, which should be binding in Florida. They're apparently using a district court ruling that says something else, so there's probably some subtlety at work.

Possible subtleties include:

* Is requiring someone to enter a password into a computer equivalent to compelling them to disclose it?

* Is compelling someone to confirm or deny knowledge of a password forced testimony because it implies the person has control over the data that password protects (assuming that's not established by other evidence).

* Is compelling someone to produce the unencrypted contents of a storage device equivalent to compelling them to disclose the password or key?