Man jailed indefinitely for refusing to decrypt hard drives loses appeal

[EC]

On Monday, a US federal appeals court sided against a former Philadelphia police officer who has been in jail 17 months because he invoked his Fifth Amendment right against compelled self-incrimination. He had refused to comply with a court order commanding him to unlock two hard drives the authorities say contain child porn.

The 3-0 decision (PDF) by the 3rd US Circuit Court of Appeals means that the suspect, Francis Rawls, likely will remain jailed indefinitely or until the order (PDF) finding him in contempt of court is lifted or overturned. However, he still can comply with the order and unlock two FileVault encrypted drives connected to his Apple Mac Pro. Using a warrant, authorities seized those drives from his residence in 2015. While Rawls could get out from under the contempt order by unlocking those drives, doing so might expose him to other legal troubles.

In deciding against Rawls, the court of appeals found that the constitutional rights against being compelled to testify against oneself were not being breached. That's because the appeals court, like the police, agreed that the presence of child porn on his drives was a "foregone conclusion."

More: https://arstechnica.com/tech-policy/2017/03/man-jailed-indefinitely-for-refusing-to-decrypt-hard-drives-loses-appeal/

Got no time for kiddie diddlers - think they should be tried and executed.

Still not happy with the thinking behind this. "Everyone knows" is too frequently wrong to allow it to be used to breach privacy.

[geronl]

They need proof, not "everyone knows". I assume they have other evidence, if not they have no reason to lock the guy up

[Restored]

Play with fire, get burned

[driftdiver]

Play with fire, get burned

Kiddie porn people should be shot.

This seems a dangerous legal precedent but maybe they have other proof showing him downloading the files.

[endicom]

If you've had your puter for a while then search the hard drive for *.jpg, *.png etc. I've never found any porn but have been surprised at all the pictures I didn't know about or had forgotten.

[EC]

Think what's bothering me the most about this is it's permanence. In law, once a precedent is set, it's used as the basis for future decisions of a similar nature.

We've been talking about (read complaining) about judges legislating from the bench - this is how they do it. Set the precedents in cases where no one really wants to defend the defendant (such as this piece of trash), then activist judges expand on those precedents in the future.

I know it's legal, it's how things work, but for some reason it's really bothering me.

[driftdiver]

If you've had your puter for a while then search the hard drive for *.jpg, *.png etc. I've never found any porn but have been surprised at all the pictures I didn't know about or had forgotten.

Also keep in mind that you aren't the only one putting images there.  Could be a family member, friend, angry ex girlfriend, or maybe some troll on the internet that needs some space for his garbage.

[geronl]

If they haven't prove a crime, I find it hard to agree to keep someone in prison

[roamer_1]

I know it's legal, it's how things work, but for some reason it's really bothering me.

And what about those who know how to crack it? Can they be legally compelled to do so?
I was nearly caught up in a similar deal... Thankfully, the LEOs found other means.

[Smokin Joe]

Think what's bothering me the most about this is it's permanence. In law, once a precedent is set, it's used as the basis for future decisions of a similar nature.

We've been talking about (read complaining) about judges legislating from the bench - this is how they do it. Set the precedents in cases where no one really wants to defend the defendant (such as this piece of trash), then activist judges expand on those precedents in the future.

I know it's legal, it's how things work, but for some reason it's really bothering me.

This is precisely why the rights of the accused are to be safeguarded, the standard of 'beyond reasonable doubt' met, and why the rights of the most deplorable of us all are as important as those of the most pure and innocent.

[endicom]

Also keep in mind that you aren't the only one putting images there.  Could be a family member, friend, angry ex girlfriend, or maybe some troll on the internet that needs some space for his garbage.

It needn't be an internet troll. I've found pictures from advertisements so there could have been other pictures of which I was unaware.

[roamer_1]

It needn't be an internet troll. I've found pictures from advertisements so there could have been other pictures of which I was unaware.

That stuff is generally found n your Windows Temp directory... CCleaner is a free utility that can get rid of all those cached temporary files (there's around 10 different places that could be... Ccleaner whacks them all).

[ABX]

Also keep in mind that you aren't the only one putting images there.  Could be a family member, friend, angry ex girlfriend, or maybe some troll on the internet that needs some space for his garbage.

There is some pretty nefarious malware that will infest a computer with it as well. I remember a guy up in New York (or thereabouts) was cleared after a year long fight because finally an expert was able to come in and show how it was added, malware, not by his own intention.

[Fishrrman]

If the guy is using Filevault (now Filevault2) on the Mac to encrypt the drives, it's pretty solid. My guess is they aren't getting to whatever's on those drives unless and until he gives them the password to decrypt/unlock them.

If I was his lawyer, I'd push this one up the ladder as far as I could get it.
The arguments to be used:
1. To jail someone "indefinitely" for any reason violates the Constitutional guarantee against "cruel and unusual punishment". A "sentence" must be of specified length (even "life") to be Constitutional.
2. Fifth Amendment right against self-incrimination (i.e., providing the prosecution with evidence against himself). To speak the password is to give "testimony" against himself by disclosing evidential material by which to further his own prosecution.

There have been other cases like this before. One of the earliest involved someone crossing the border from Canada to the USA, who was similarly suspected of child porn on his computer (also a Mac which I believe was locked down with a firmware password -- can't even boot without the password). He was jailed (as above), but I don't remember the disposition of his case.

[Frank Cannon]

In deciding against Rawls, the court of appeals found that the constitutional rights against being compelled to testify against oneself were not being breached. That's because the appeals court, like the police, agreed that the presence of child porn on his drives was a "foregone conclusion."

This ruling is bullshit. I hope this creep fights this to a higher court. If the cops can't find the illegal stuff on their own, why is it the responsibility of the defendant to do so? Also if this is a "forgone conclusion" then take the case to court and prove the guy is a dirtbag without the hard drives.

[driftdiver]

Meanwhile the FBI is dropping child porn charges against people because the FBI doesn't want yo reveal how they got the evidence.

[Smokin Joe]

In deciding against Rawls, the court of appeals found that the constitutional rights against being compelled to testify against oneself were not being breached. That's because the appeals court, like the police, agreed that the presence of child porn on his drives was a "foregone conclusion."

This ruling is bullshit. I hope this creep fights this to a higher court. If the cops can't find the illegal stuff on their own, why is it the responsibility of the defendant to do so? Also if this is a "forgone conclusion" then take the case to court and prove the guy is a dirtbag without the hard drives.

The only correct foregone conclusion would be that the accused is innocent until proven guilty. The burden of proof lies with the State. If his drives were obtained by warrant, it is up to them to read them. If he had had hard copy of documents in code, they would have to crack the code, too. He has no obligation to prove innocence, that is to be presumed.

[Suppressed]

The actual decision isn't long, and it has some very interesting parts: https://arstechnica.com/wp-content/uploads/2017/03/rawlsopinion.pdf

For example, it relies in part on Fisher v. United States, 425 U.S. 391, 408 (1976):

The Fifth Amendment, however, “does not independently proscribe the compelled production of every sort of incriminating evidence but applies only when the accused is compelled to make a Testimonial Communication that is incriminating.”

That case is also where they get the "forgone conclusion" terminology.  Some of the stuff already decided can be scary.  Some additional verbiage that will be relevant to points on the thread:

In Fisher, however, the Court also articulated the “foregone conclusion” rule, which acts as an exception to the otherwise applicable act-of-production doctrine. Fisher, 425 U.S. at 411. Under this rule, the Fifth Amendment does not protect an act of production when any potentially testimonial component of the act of production—such as the existence, custody, and authenticity of evidence—is a “foregone conclusion” that “adds little or nothing to the sum total of the Government’s information.” Id. For the rule to apply, the Government must be able to “describe with reasonable particularity” the documents or evidence it seeks to compel.  Hubbell, 530 U.S. at 30.

Although we have not confronted the Fifth Amendment implications of compelled decryption, the Eleventh Circuit has addressed the issue and found that the privilege against self-incrimination should apply. In that case, a suspect appealed a judgment of contempt entered after he refused to produce the unencrypted contents of his laptop and hard drives. In re Grand Jury Subpoena Duces Tecum Dated Mar. 25, 2011, 670 F.3d 1335, 1337 (11th Cir. 2012). The court found that “(1) [the suspect’s] decryption and production of the contents of the drives would be testimonial, not merely a physical act; and (2) the explicit and implicit factual communications associated with the decryption and production are not foregone conclusions.” Id. at 1346. The court reached this decision after noting that the Government did not show whether any files existed on the hard drives and could not show with any reasonable particularity that the suspect could access the encrypted portions of the drives. Id. Although the court did not require the Government to identify exactly the documents it sought, it did require that, at the very least, the Government be able to demonstrate some knowledge that files do exist on the encrypted devices. Id. at 1348–49.

Despite Doe’s argument to the contrary, the Eleventh Circuit’s reasoning in In re Grand Jury Subpoena does not compel a similar result here.  . . .

Note that the decision also addresses other reasons why they believe there's kiddie porn on the devices, and additional important aspects of the decision.

Note: IANAL.

[DB]

If it's a "foregone conclusion" then what's the point of demanding it be decrypted. If it is already known, nothing is gained. Holding someone in prison over an issue where nothing is gained if they comply seems a bit absurd. I also don't see how there can be any other interpretation of being forced to provide self incriminating evidence - a violation of his 5th amendment rights. Ruling otherwise is just rationalizations to get around a basic constitutional right and is a corruption of our law.

[EC]

If it's a "foregone conclusion" then what's the point of demanding it be decrypted. If it is already known, nothing is gained. Holding someone in prison over an issue where nothing is gained if they comply seems a bit absurd. I also don't see how there can be any other interpretation of being forced to provide self incriminating evidence - a violation of his 5th amendment rights. Ruling otherwise is just rationalizations to get around a basic constitutional right and is a corruption of our law.

I'm thinking maybe the prosecutors have a lower opinion of the jury's intelligence? "Proving" the pictures exist on the defendant's hard drive using a string of numbers hasn't the same impact of showing the pictures themselves.

I dunno. 

[ABX]

I'm thinking maybe the prosecutors have a lower opinion of the jury's intelligence? "Proving" the pictures exist on the defendant's hard drive using a string of numbers hasn't the same impact of showing the pictures themselves.

I dunno. 

I have a feeling the prosecutor will use the reasoning that because he had the password to access it and could show he was able to access it, that is evidence against him.

They are demanding that he create evidence against himself.