Using The All Writs Act To Route Around The Fifth Amendment
from the all-fun-and-games-until-someone-loses-a-right dept
USA Today's Brad Heath has dug up another use for the FBI's now-infamous All Writs Act orders: skirting the Fifth Amendment. In a 2015 case currently headed to the Appeals Court, the government is attempting to use All Writs to force a defendant to unlock his devices.
The order finding Francis Rawls guilty of contempt contains a footnote pointing to the government's use of an All Writs order to force Rawls to unlock his devices -- and, one would think -- allow the government to dodge a Fifth Amendment rights violation.
On July 29, 2015, the Government obtained a search warrant for certain electronic media previously seized by Delaware County and Philadelphia County law enforcement officials. Dkt. No. 1. On August 3, 2015, the Government made an application pursuant to that All Writs Act to require Francis Rawls to assist in the execution of a previously executed search warrant."Assist in the execution" means forcing Rawls to possibly provide evidence against himself, depending on what's contained in the devices. However, the court didn't see it this way. It considered his unlocking of the devices to be "non-testimonial." While it did grant him a chance to respond to the All Writs application, it ultimately found in favor of the government.
Importantly, the August 27th Order rejected Rawls contention that providing any assistance to the Government would violate his Fifth Amendment privilege against self-incrimination.More on the court's reasoning can be found in the order granting the government's All Writs application -- again relegated to a footnote.
By way of a "Motion to Quash Government's Application to Compel" filed August 26, 2015, Mr. Rawls objects to providing assistance to the government in the execution of the search warrant because his act of decrypting the electronic devices seized by the government would be considered testimonial and, therefore, violate his Fifth Amendment privilege against self-incrimination. However, federal courts have recognized the "foregone conclusion" doctrine. The courts hold that the act of production of encryption codes is not testimony - even if this production conveys a fact regarding the possession or authenticity of the images contained in the electronic devices - if the government can show with "reasonable particularity" that, at the time it sought to compel the assistance of Mr. Rawls, it already knew of the materials, thereby making any testimonial aspect a "foregone conclusion."According to this reasoning, the government already "knows" what's contained on the devices, so there's nothing incriminating about Rawls unlocking them for it. But why would that require the use of an All Writs order? It would seem if the evidence is a "foregone conclusion," then there's no need for the devices to be unlocked at all. The government should have all the evidence it needs to continue with its prosecution.
[...]
Here, the Affidavit of Special Agent David Bottalico, supporting the application for a Search Warrant, establishes that (1) the Government has custody of the electronic devices; (2) prior to the Government's seizure, Mr. Rawls possessed, accessed and owned all the electronic devices; and (3) there are images on the electronic devices that constitute child pornography. Therefore, under the "foregone conclusion" doctrine, requiring Mr. Rawls to assist in the decrypting of those devices does not violate his privilege against self-incrimination.
The All Writs Act is in place to work around limitations in law -- for situations where current laws don't completely apply. Lately, it seems to used most often to advance ahead of Congress and exploit areas where technology has outpaced legislation. In this case, the Act is being used to create a loophole in the Fifth Amendment -- seemingly for no other reason than to allow the government to bolster its case. While that is the point of seeking evidence, it would appear the government already has evidence of criminal activity and is using All Writs to do what it can't do directly without jeopardizing its prosecution: force Rawls to unlock his devices.
The case citations are also illuminating. Apparently all the government needs to acquire an All Writs order compelling decryption is the knowledge that a.) said device exists and b.) the government knows where it is located.
[U]nited States v. Sabit, 2014 WL 1317082, at *2 (E.D. Mich. April 1, 2014) ("[W]hen a witness produces a document that the government knows exists, the act of production is tantamount to a "surrender" and is not "testimonial.")Brad Heath notes that this a "more common" use for All Writs requests. There does appear to be some history here. Notably, a similar effort made during a prosecution over similar subject matter was denied by a magistrate judge in Wisconsin. While the judge in the 2015 case found the unlocking of devices to be "non-testimonial" and a foregone conclusion, Judge William E. Callahan Jr. found it to be "compelled incrimination" -- a violation of the defendant's Fifth Amendment rights.
[...]
United States v. Fricosu, 841F.Supp.2d1232, 1236 (D. Colo. 2012) (defendant's Fifth Amendment privilege against self-incrimination was not implicated by requiring her to produce the unencrypted contents of a computer, when the government knew of the existence and location of the computer's files); In re Boucher, 2009 WL 424718, at *3 (D. Vt. Feb. 19, 2009) (requiring defendant to produce an unencrypted version of his laptop's Z drive did not constitute compelled testimonial communication when the government previously knew the location of the Z drive and its files).
This is a close call, but I conclude that Feldman’s act of production, which would necessarily require his using a password of some type to decrypt the storage device, would be tantamount to telling the government something it does not already know with “reasonably particularity”—namely, that Feldman has personal access to and control over the encrypted storage devices. Accordingly, in my opinion, Fifth Amendment protection is available to Feldman. Stated another way, ordering Feldman to decrypt the storage devices would be in violation of his Fifth Amendment right against compelled self-incrimination.The only difference between the two cases is the strength of the government's assertions as to the defendant's "personal access and control" of the devices in question. Because much of the docket is sealed in the 2015 case involving Rawls, we can't see firsthand what evidence the government provided that makes this case stronger than the 2013 case where its All Writs request was denied. (We do have access to Rawls' lawyer's arguments to the contrary.) The footnote contained in the contempt order only points to an affidavit by an FBI agent stating that devices were in Rawls' possession and he owned them -- right up until they were seized.
So, it appears the Fifth Amendment only goes so far in the US judicial system. But if it's that limited, it would seem an All Writs order is extraneous. If there's nothing protecting defendants from incriminating themselves when compelled by an All Writs order, then there's nothing stopping the FBI from "sweating down" defendants until they comply. As interpreted in this case, the only difference between an All Writs order and several hours of nonstop interrogation is FBI man-hours.
Rawls' case made be headed for the Appeals Court, but he'll be spending that intervening time in jail. His motion to stay the contempt order pending appeal was also denied.
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Filed Under: all writs act, encryption, fbi, fifth amendment, francis rawls
Reader Comments
The First Word
“Re: Too bad...
No matter how slimey you think Hustler's Larry Flynt is, he's done a lot of good for the 1st Amendment in his time. If our Constitution is going to apply to the best of us, it must also apply to the worse of us, or it doesn't apply at all.Subscribe: RSS
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Simple tests
As for the question of self-incrimination, there's an easy way to test that too. Simply ask if the prosecution would be willing to sign a legally binding document giving the defendant immunity for anything found due to the production of the password/decryption. If the answer is 'No', as I imagine would be the case the majority of the time, then the defendant absolutely is being 'asked' to provide self-incriminating evidence(that they can unlock a particular device/account if nothing else), and the Fifth should apply.
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Re: Simple tests
Should the prosecution reveal and show what that "material" is then they will be showing that they broke the encryption to get hold of the material and done so without the owner giving the password to encryption.
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Re: Re: Simple tests
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Re: Re: Re: Simple tests
Suppose the encryption was a one time pad.
In that case the key and the encrypted data are essentially equivalent. Thus handing over the key would be the same thing as handing over the data. I don't think the nature of the encryption should be regarded as important - and since the key is stored in his memory handing over the key is exactly equivalent to self incrimination.
Having said that I don't think the court used legal precedent and logic to arrive at their conclusions - I think they attempted to use them to justify a conclusion that they had predetermined.
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Re: Re: Re: Re: Simple tests
In cases where the encryption fo data is broken, the methodology must be shown. If it is not, then the prosecution could be outright lying about what ios on that phone. In fact, in the US, I would start with that as the default position, given the actions of the DoJ and a number of Law Enforcement Agencies.
So, the onus is on them to prove that the data is accurate, and has been obtained lawfully.
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Re: Re: Simple tests
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Re: Simple tests
The All Writs Act is a law written by Congress. If a law conflicts with the limitations placed on the government by the Constitution, then the law is declared "Unconstitutional" in the way it is trying to be applied. In other words, the law cannot be applied that way. End of case.
The only thing that is going to stop the All Writs Act from being abused by the FBI or anyone else is for one of these cases to reach the US Supreme Court (SCOTUS). Once one does, I am confident that the SCOTUS will agree that the All Writs Act cannot be used to circumvent any amendment in the Constitution, period.
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Re: Simple tests
This (again) is all about precedent.
But this is a good defense move to ask for
immunity. The problem is that all lawyers
need to do it.
Note: s/defendant/prosecution/ in your last
sentance. The sentance remains totally valid.
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i don't know
On the other hand, what if me and someone else make up a completely novel language to converse in. If we text each other in our incomprehensible (encrypted?) language and the feds decide they want to read them, can we be forced to teach the language to a special agent? If he's a bad student, are we in contempt?
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Re: i don't know
That string of characters is something you remember whereas the dna is a physical thing that could in principle be obtained forcibly without torture.
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Re: Re: i don't know
The password is written on a sticky-note, scotch-taped to the monitor. Always. Just like everyone else does with long passwords that they never can remember.
If the government agents are so careless when they seize the equipment that the sticky-note gets lost —well, that's on them, isn't it? A careful forensic examination will be sure to show the scotch-tape residue left on the monitor where the sticky-note used to be taped.
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Re: Re: i don't know
its characters all the way down, dr feynman ! ! !
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Re: Re: Re: i don't know
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Re: Re: Re: Re: i don't know
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Yes it is perjury. But no more perjury than their promising to uphold the constitution and failing to do so.
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Re:
And that's the real long term damage done by the US law enforcement's culture of "by any means necessary". I often feel myself coming unstuck from the boundaries of The Law. I mean, if the police and the DA and the DEA are willing to subvert the justice system by various (maybe) legal things, including parallel constructions, then why should I buy into a legal system that's almost certainly rigged against me? Lots of things are totally illegal, and lots of laws are secret, and I have no easy way of determining beforehand
what's illegal and what the secret law says. So, fuck 'em. I'll act like I'm not breaking any laws, I'll put on the appearance of abiding by the law, but I'll do what I fucking want to do when nobody's looking.
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Re:
Actually I would think it could be contempt of court, and there's no limit to how long you can be jailed for contempt of court.
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My guess
Would a judge consider that sufficient?
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Too bad...
It would be much easier to muster righteous indignation if the underlying case involved lofty ideals and courageous rebels, not slime buckets.
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Re: Too bad...
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Re: Too bad...
It shows an inherent flaw in public opinion. It's the exact reason why our court systems were created. Too bad the court system has lost track of that purpose.
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Re: Too bad...
Lawful police work is capable of catching child porn downloaders in the act. After which, a lawful case can be built against the shitbag and lawfully acquired evidence can be demonstrated. Afterward, a lawful sentence of incarceration can be handed down to them.
What's not lawful is throwing out every legal guideline and restriction in the book in order to try to crucify a defendant in court.
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Re: Too bad...
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Re: Too bad...
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Re: Too bad...
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Current status?
That was six months ago!
Is the contemnor, Francis Rawls, still incarcerated today?
What has happened in this case in the last half year?
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Wow... so a hard drive that may not even be yours, and you go to fail for life because you may not be able to decrypt... does anyone else find that really scary?
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They can either break into the phone or hold you in contempt, but as others have said, you could always use the "I forgot the key" defense.
This case actually involves a police officer (who isn't or soon won't be) a police officer going forward. Charges are not clear either, but probably has to do with child porn.
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Re:
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Re:
(1) They wouldn't need a second warrant. Assuming what they're looking for with the first warrant could fit inside the safe, then the safe is covered by the first warrant. And if what they're looking for can't fit inside the safe, the judge won't issue a second warrant for the safe just 'cause the cops are curious what's inside it.
(2) The owner of the safe wouldn't be compelled to open the safe. The cops would just drill it open.
This is the unique problem with encryption for law enforcement. This is the first time in jurisprudential history that the government is running into "containers" that they can't break into against the will of the people who own them, so they're having to enlist the help of people to act against their own best interests.
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There are penalties for Contempt of Court.
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Plausible deniability access code
So at what point will courts believe the person who gives them the access code?
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Re:
> search was being resisted, thus the arrest.
So if the court issued a warrant ordering you to produce knowledge in your head for the location of a murder weapon, and you refused to lead the cops to the murder weapon (whether you actually know its location or not), they can hold you in contempt and jail you indefinitely?
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Re:
Because he's being ordered to aid in his own prosecution in violation of his fifth amendment rights. They're asking him to help them find evidence that will be used against him.
Imagine if someone was accused of a murder, so the police get a search warrant to search that person's house, but they don't find the murder weapon. The police tell the court that they KNOW he committed the crime, so the court then issues an order saying that the suspect MUST tell the police where the weapon is. When he claims he doesn't know anything, the judge holds him in contempt and orders him locked up until he confesses.
The above would never be allowed in the US. It would be a blatant constitutional violation, but yet when the police want a person to do the exact same thing in digital form, a judge thinks that's just fine.
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Re: Re:
1 - the encryption code itself is not incriminating, any more than the key to a lock or the combination to a safe is incriminating. The encryption code itself does not by itself incriminate the guy for anything, The data that is encrypted may be incriminating, but that is a different story.
2 - if the phone belongs to the suspect, and is encrypted, there is no issue of producing a non-existant weapon. Quite simply, the "weapon" is in plain sight, everyone knows it's his, the court has ordered him to unlock the box that has it in it. It's pretty hard to deny that the phone / computer / device isn't his. So the suspect isn't being ordered to make something appear that the police don't already have - just to give appropriate access.
If it was a locked room, safe, safety deposit box, storage facility, or secret compartment in a vehicle, the police would access it by any means possible. I don't think it's a good legal standing to give encrypted devices special privilege over these other "real world" storage methods. Demanding that he turn over a key or pass code to access a locked area THAT IS CLEARLY HIS isn't making him produce a weapon or otherwise incriminate himself. The existence of the locked box is itself incriminating, as is his desire NOT to unlock it.
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Providing the code is providing the content, it just takes one more step to get, and the idea that the code to decrypt has nothing to do with the content is ridiculous.
Without the code = No access to the content, no using said content as evidence because they can't be sure it is evidence.
With the code = Access to the content, able to use it as evidence, definitive link established between the one that provided the code and the contents.
As well simply demonstrating that you have the key to a lock, or know the code to a safe can be incriminating, because while the police may be 'really sure' that a given person has access to a device/safe that's not necessarily enough to link the person to the contents of it, whereas showing the ability to unlock it establishes that link.
If someone handed me a locked phone for example just because I happen to have it on me doesn't mean I have anything to do with what's on it, or what it's been used for, which means linking me to either is going to be a problem to whoever is trying to do so, despite the fact that I am in possession of the phone. However if I demonstrate the ability to unlock it then that's solid proof that I do have access to the contents, and the link between me and the phone's contents is established.
Quite simply, the "weapon" is in plain sight, everyone knows it's his, the court has ordered him to unlock the box that has it in it. It's pretty hard to deny that the phone / computer / device isn't his. So the suspect isn't being ordered to make something appear that the police don't already have - just to give appropriate access.
Except that until the box is unlocked they don't have anything but a locked box. They don't have the 'weapon'/evidence, all they have is a box, if they did have the weapon/evidence, then they wouldn't need to force someone to unlock the box/provide it.
They don't have anything but a suspicion or strong belief that there's evidence on a device/in a safe, and last I checked that's not(or shouldn't be anyway) enough to secure a conviction, so forcing someone to unlock something or provide the password is forcing someone to provide incriminating evidence against themself.
As I noted in my first comment on this article this is easy to demonstrate too, the defendant simply asks for immunity for anything found on the device/in the 'box'. If they aren't being asked to provide incriminating evidence, then immunity should be easy to provide, that's only a problematic request if the prosecution/investigators are going to use the contents of the device/safe against the defendant.
The existence of the locked box is itself incriminating, as is his desire NOT to unlock it.
You need to make up your mind, is the presence of encryption/a 'locked box' incriminating or isn't it?
Aside from that though, no it really isn't, unless you're going to argue that the existence of a locked door is incriminating, in which case have fun with the billions of those all over the place, including I would imagine your home.
Hypothetical example time.
Say a safe was created that was completely impervious to outside tampering, such that nothing but the owner putting in the combination would allow it to be accessed. No amount of effort, no amount of time would allow access without the owner of the safe unlocking the safe themself.
Should a warrant allow police or government agents to be able to force someone to open it up?
In case it isn't clear, in the example above the 'safe' is a stand in for someone's mind. There has always been things that the police do not have access to, limits on what they may search and what evidence they may compel someone to provide. You say digital 'locks' shouldn't be treated differently than physical ones, I say that the contents of someone's mind has been off limits before, and that shouldn't change now.
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How they "know" what's contained on the devices
"the government below asserts that the testimonial aspects of the act of production are a "foregone conclusion" because of viewed image labels and images certain family members veiwed and thus, the act of production would convey no information that it did not already have. "
and
"Instantly, respondent submits that simply because certain relatives may have allegedly observed certain images on respondent's devices and advised government agents of them, does not establish that they currently are contained in files saved on the devices."
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Re:
An act of production may be testimonial if it testifies to the existence, location or authenticity of physical evidence, so forcing a murder suspect to hand over all guns in his possession is clearly covered by the Fifth Amendment.
Note that probable cause to search under the Fourth Amendment is distinct from whether the suspect can be compelled to aid in his own prosecution.
This difference must be obvious, for otherwise the government could get a warrant to search a house belonging to a murder suspect, and order him to hand over all evidence the government might believe were there.
The analogy to DNA and blood is also misplaced, since it can be extracted without compelling the suspect to testify to its existence or authenticity.
An encryption code, even where such can be proven to exist is different in that entering either the right or wrong code produces either humanly readable or purely random data.
Disclosing the password to the government testifies to the fact that the individual under compulsion is likely the actual owner of the cleartext data, and that authentification places him squarely at the scene of the crime.
In other cases, the government has tried to get around the testimonial aspects of disclosing the password by trying to compel the suspect to enter the password himself, and that may work if he has already let the cat out of the bag in a taped jailhouse phone call or admitted it to law enforcement.
But barring these narrow exceptions which by the way only catch the stupid, the government should not have the right to compel a suspect to testify to the existence of incriminating evidence.
Note that whether the evidence is independently incriminating is not the crucial question, but rather whether the individual can be forced to testify as to its existence or authenticity.
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Keep in mind that a legal warrant was obtained and served. With a warrant, the courts can pretty much force quite a bit.
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