You're correct to make the distinction, but when it comes to law enforcement, both rights and abilities originate in the same place: legislation.
The law gives police the right to enter your premises if they have a valid search warrant. But it also gives them the rams, guns, body armor, etc.--the ability to exercise that right.
From a practical perspective, lawmakers try to address both rights and abilities when crafting legislation that enforces laws. I think it's really unlikely that politicians would say "here's the right, but the ability is your problem." No, they'll write a law that gets the effect they want, even if means granting powers that seem ridiculous to us. There is no shortage of things that have the force of law today despite seeming ridiculous to us.
I am worried about backdoors. They are being seriously considered at the highest levels of government.
What if his house is on the moon, and the government wants him to give them a free ride (to the tune of a few billion) to the moon to execute the search warrant? I would argue that he's compelled to turn off the giant laser cannon to allow the police to get there without being destroyed, but not to let them use his personal craft.
That's the problem with encryption, it's totally unlike anything else that exists in the world. It's impossible (so far) to prove whether someone legitimately forgot the password, or if they're just saying that they forgot it in order to hide/destroy evidence.
What other thing quite literally may or may not exist, depending on the state of a person's mind?
Consider that politicians could just outlaw building houses on the moon entirely, to avoid this problem. Just like they could mandate backdoors in encryption if they believe it is the only way to give police access that the politicians believe they should have. EDIT TO ADD: I believe this is a bad idea but I am concerned it could happen.
Also in terms of a phone, it's easy to tell if it is encrypted, because modern phone operating systems encrypt by default. So the question is whether a person can be compelled to give their password.
If the person wants to assert that they cannot provide the password because they forgot it, that is a defense that can be evaluated in a trial. Is the person lying, or did they really forget it? The court system exists to resolve questions like that. EDIT TO ADD: I'm just making the point that the possibility that someone might claim they forgot their password does not in any way prevent the passage of a law requiring people to provide their password. People try various tricks to get around all sorts of laws--that's why we have a court system.
I don't see how the contents of a person's brain can be discovered by a court. That's a fact which (so far) can only be known by the defendant. Even if a week ago they showed someone that they knew the password, they still could have forgotten it in the last week.
It'd be like trying to determine with 100% accuracy what a person's favorite color is. No matter how many witnesses you call and how many decades of documentation that it's blue you have, that doesn't make it blue. It just meant it was blue.
Intent is in the brain and criminal trials do try to discover it.
Oscar Pistorius shot and killed his girlfriend. "I thought she was an intruder; I did not mean to hurt her," he said (paraphrase). The facts were not in doubt; the entire case hinged on whether the jury believed he was telling the truth.
I agree that there is no way to recover a passcode from the brain (outside of science fiction). But it seems like a court could rule on whether claims of forgetfulness are real.
There's a huge difference between shooting a person and forgetting a password.
Further, any random assortment of bits is potentially an encrypted volume. At least with a murder there is a body. With a "forgotten" password -- or a password you never had to begin with because there is no encrypted volume -- nothing bad has to happen. So it's far more likely to be abused to put people behind bars that "we know did it" but where the police or whoever can't get them on anything else. Like how mobsters often go to jail for tax evasion rather than the violent stuff.
Intent is a factor in almost all U.S. criminal prosecutions, even people who are being prosecuted for shoplifting and say they just forgot to pay.
In terms of the encrypted volume, law enforcement has to prove each step on its own. They can't seize the computing device until they prove it is actually likely to contain evidence relevant to the prosecution of a crime. And they can't ask a suspect for their passcode until they prove that there is actually an encrypted volume to be unlocked (this is probably easier than you think). And if the person says they forgot the password, law enforcement would have to prove that they are lying.
Courts already handle similar situations with contempt and perjury proceedings. Even though criminal contempt or perjury is usually secondary to the "main case," it has to be proven beyond a reasonable doubt just like any other crime.
That's why it's not "abuse." It's not like law enforcement can magically lower the bar for conviction by some special procedure. When Al Capone went to jail for tax evasion, he really had evaded taxes, and the government proved it beyond a reasonable doubt.
I'm sure Capone really had evaded taxes. But the idea that the government couldn't get him on anything besides tax evasion is pretty sad.
The idea that the police or prosecutor has to "prove" all this stuff is nice, but not in line with reality. Warrants get issued on suspicion all the time. There's not a pre-trial trial to determine in front of a jury if the suspected encrypted volume is in fact an encrypted volume.
The judge orders you to provide the password and if you don't you're held in contempt for as long as you don't. Which, if you don't know the password, could be the rest of your life.
That's why some in law enforcement might be tempted to invent an encrypted volume that doesn't exist. Because it short-circuits the normal judicial process. And when you know someone is guilty but the damn red tape gets in the way, it can be tempting to try and make things "right".
A warrant can be issued on suspicion, but once the judge or prosecutor tries to prosecute for contempt, they would need to prove beyond a reasonable doubt that it was actually an encrypted volume.
> I don't see how the contents of a person's brain can be discovered by a court. That's a fact which (so far) can only be known by the defendant. Even if a week ago they showed someone that they knew the password, they still could have forgotten it in the last week.
Mental states -- including knowledge of specific facts, intent, belief, etc. -- are necessary elements of many offenses are determined by courts in the same way as any other facts.
> It'd be like trying to determine with 100% accuracy what a person's favorite color is.
No, its not, because even the "beyond a reasonable doubt" standard for criminal prosecutions is not targeting 100% accuracy, which would be unattainable for any class of facts (not just mental states.)
The law gives police the right to enter your premises if they have a valid search warrant. But it also gives them the rams, guns, body armor, etc.--the ability to exercise that right.
From a practical perspective, lawmakers try to address both rights and abilities when crafting legislation that enforces laws. I think it's really unlikely that politicians would say "here's the right, but the ability is your problem." No, they'll write a law that gets the effect they want, even if means granting powers that seem ridiculous to us. There is no shortage of things that have the force of law today despite seeming ridiculous to us.
I am worried about backdoors. They are being seriously considered at the highest levels of government.