Note that a court could cite you for contempt for not complying with a subpoena duces tecum (a subpoena requiring you to produce objects or documents) if you fail to turn over subpoenaed backups.
This is gonna sounds weird, but.... Let's say I have a (paper) document which explains how I (for example) embezzled money from Megacorp, Inc. I presume that the Fifth Amendment means I cannot be forced to produce this document. Case 1: let's say that I have the same document on disk, in the clear. Can they force me to produce that? Case 2: They sieze a disk from an associate which has the document, but it's encrypted. Can they force me to produce the key? Mike, you claim that there is precedent which says that they can. I'm curious how the Fifth Amendment allows this. I've heard you say in the past that key escrow doesn't violate the 5th because you're not disclosing anything at the time. But if the government possesses an incriminating document, wouldn't forcing me to give them the key constitute self-incrimination? Case 3: I keep all my stuff encrypted, and enter the key from (say) a smartcard of some sort when I boot up. They seize my machine, and insist that I give them the key. I refuse, because the key is stored in a cleartext document, which incriminates me in some way. (Say the key is a hash of the document itself.) Since I'm sure there's no precedent for this, what are the legal implications of seizing this document? Case 4: "I forgot." Can they do anything? Marc