> If you and a cohort were the last survivors of a dying tribe, with your own special language that no one understood, and you criminally conspired with them via written word, the government could not compel you to translate your messages just because they cannot understand them. That's the 5th Amendment in action, as you'd be creating testimony against yourself.
Ignoring the fact that it seems, uh, unwise to ask a defendant to provide an unverifiable translation of self-incriminating evidence (which is different from most encryption scenarios)...
I imagine that if this scenario were actually common and law enforcement was complaining about it, there would be a political debate, much like this one, except including "should we reinterpret or amend the 5th amendment to allow a court to order them to translate it", and a lot of people would agree with them.
Now of course many criminals in the past have written down coded notes that have been seized as evidence, but they're often somewhat interpretable or inferences can be drawn from them even if the defendant doesn't cooperate, which is not the same as your hypothetical, or something that's been AES or RSA encrypted.
I do take your point about how terrible things are going to get once we have brain-computer interfaces, which is a major reason why I think we shouldn't build them.
That's the problem with these rights: they're always up for interpretation. And the interpretation can be anything a handful of politically appointed people want.
That is also not a solvable problem. Someone's got to do the interpreting, and if your perfect legal system is so perfect as to not permit the occasional reinterpretation as circumstances and opinions change, it'll just collapse in on itself and be replaced by one that does.
Ignoring the fact that it seems, uh, unwise to ask a defendant to provide an unverifiable translation of self-incriminating evidence (which is different from most encryption scenarios)...
I imagine that if this scenario were actually common and law enforcement was complaining about it, there would be a political debate, much like this one, except including "should we reinterpret or amend the 5th amendment to allow a court to order them to translate it", and a lot of people would agree with them.
Now of course many criminals in the past have written down coded notes that have been seized as evidence, but they're often somewhat interpretable or inferences can be drawn from them even if the defendant doesn't cooperate, which is not the same as your hypothetical, or something that's been AES or RSA encrypted.
I do take your point about how terrible things are going to get once we have brain-computer interfaces, which is a major reason why I think we shouldn't build them.