The crux of the dispute here is whether the Government sought “testimony” within the meaning of the Fifth Amendment. The Government claims that it did not, that all it wanted Doe to do was merely to hand over pre-existing and voluntarily created files, not to testify. See United States v. Hubbell, 530 U.S. 27, 35–36, 120 S. Ct. 2037, 2043, 147 L. Ed. 2d 24 (2000) (noting that it is a “settled proposition that a person may be required to produce specific documents even though they contain incriminating assertions of fact or belief because the creation of those documents was not ‘compelled’ within the meaning of the privilege”). We agree—the files, if there are any at all in the hidden portions of the hard drives, are not themselves testimonial.Yes, it would, held the court, upholding the invocation of privilege. Comments at Prof. Kerr's post credit the op with being one of the rare ones to exhibit understanding of how encryption works—TBA will defer to anonymous professions of expertise on this subject.
Whether the drives’ contents are testimonial, however, is not the issue. What is at issue is whether the act of production may have some testimonial quality sufficient to trigger Fifth Amendment protection when the production explicitly or implicitly conveys some statement of fact. See Fisher v. United States, 425 U.S. 391, 410, 96 S. Ct. 1569, 1581, 48 L. Ed. 2d 39 (1976) (“The act of producing evidence in response to a subpoena nevertheless has communicative aspects of its own, wholly aside from the contents of the papers produced.”). Thus, we focus on whether Doe’s act of decryption and production would have been testimonial.
The op has the incidential function of being a pretty amazing advertisement for TrueCrypt, the software in question. "Endorsed by the 11th Circuit Court of Appeals"?