Government Argues That Indefinite Solitary Confinement Perfectly Acceptable Punishment For Failing To Decrypt Devices

from the 'The-Blank-Permission-Slip-Act-of-1789' dept

Wed, May 18th 2016 12:52pm — Tim Cushing

Recently, we covered the ongoing jailing of a former Philadelphia police officer for his refusal to unlock encrypted devices for investigators. "John Doe" is suspected of receiving child porn but the government apparently can't prove its case without access to hard drives and Doe's personal computer. So far, it's claiming the evidence it's still seeking is a "foregone conclusion" -- an argument the presiding judge found persuasive.

The "foregone conclusion" is based on an interview with Doe's estranged sister, who claims she once saw something resembling child porn on Doe's computer -- although she can't say for sure whether it involved the devices the government seeks access to -- and its own expert, who says it's his "best guess" that child porn can be found on the devices.

Hardly compelling, but compelling enough that Doe has spent seven months in jail to date. The government has filed its response to Doe's motion to stay the contempt order. It argues that Doe can spend the rest of his life in jail for all it cares. If he wants to be released, he just needs to unlock the encrypted devices. (via Brad Heath)

Doe faces no irreparable harm in the absence of a stay. In arguing otherwise, what he fails to recognize is that his imprisonment is conditional – it is based entirely on Doe’s continued defiance of the district court order. There can be no question that loss of liberty is a recognized harm. But Doe’s incarceration is by his own hand. His release pending an appeal is entirely avoidable through obedience to the court order.

The government goes on to point out that Doe -- once he's unlocked the devices -- can then present his arguments for evidence suppression.

Doe could choose to obey the court’s directive by unencrypting his devices, and his release would be granted. This is no way affects his appeal. He would still be able to persist in his appeal, and, if successful, the evidence the government would gain through forcing Doe to unencrypt his devices would be suppressed. The “irreparable harm” Doe complains of now is not “irreparable” in any sense, as it is entirely within Doe’s control.

As the government notes, civil contempt charges are meant to be coercive. As such, the only person keeping Doe from being released from prison is Doe himself. Of course, if the drives contain what the government claims they contain, he'd just be exchanging an indefinite sentence for a more finite one.

The added wrinkle to this case is the terms of Doe's confinement for contempt. Doe is in solitary confinement -- something the UN has declared to be torture -- supposedly for his own protection. It's generally true that the prison population has no love for child porn fans. They're not overly fond of imprisoned law enforcement officers either. And the nuances of the case -- that Doe has not actually been convicted of child porn charges but rather has been jailed for contempt of court -- will likely go unexamined by other inmates.

So, it may be that Doe's solitary confinement would be less torturous than spending time in general population, but at the end of it, we have a person jailed indefinitely in solitary confinement for nothing more than contempt charges. The government's arguments on behalf of the jailing seem to assert that it has plenty of evidence already in hand. If so, the question is why the government hasn't moved forward with prosecution, rather than pushing for Doe to decrypt his devices. Either it has a case or it doesn't. If it doesn't, then the indefinite jailing is punitive -- a punishment for the defendant not being more helpful in building a case against himself, which is the root of Fifth Amendment protections, no matter how the government chooses to phrase it.

Doe-Response-Encryption-Case (PDF)Doe-Response-Encryption-Case (Text)

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Filed Under: 5th amendment, decryption, passwords, solitary confinement

92 Comments

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Anonymous Coward, 18 May 2016 @ 1:03pm

Doe should just claim national security reasons for not decrypting the drive. Afterall, it works for other criminals.
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Anonymous Coward, 18 May 2016 @ 1:05pm

So far, it's claiming the evidence it's still seeking is a "foregone conclusion" -- an argument the presiding judge found persuasive.
Seems kinda weird that prosecutors and judges are too ethical to just go ahead and fabricate the evidence, but they don't have any problem whatsoever with torturing someone until he gives it up.
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- Anonymous Coward, 18 May 2016 @ 1:15pm
  
  Re:
  Man do you have it wrong.
  
  Contempt charges are never about evidence or guilt... only decorum.
  
  It's about the dog and pony show and this person is just not willing play ball the way they want it.
  
  The system is thoroughly corrupt, and as more and more people figure out that their day in kangaroo court is just that, some will just start shooting government officials when they come for them because they know there is no chance of a fair trial.
  
  The future is looking bleak indeed.
  [ link to this | view in chronology ]
  - Charles R Batchelor, 27 May 2016 @ 11:58pm
    
    There is no bail per say in federal court.
    There is no bail per say in the federal court system. You are released or not, there is no in between where you pay to be released like state or local. He's being held until he relents and violates his own 5th Amendment rights so the government can have their case instead. This crap needs to stop and stop now.
    [ link to this | view in chronology ]
- That One Guy (profile), 18 May 2016 @ 1:27pm
  
  Re:
  Seems kinda weird that prosecutors and judges are too ethical to just go ahead and fabricate the evidence,
  
  Yeah, about that...
  
  That's evidence laundering in a nutshell, get evidence from an illegal source and then fake it so that it appears to come from a legal one, so no, they are not 'too ethical' to fabricate evidence if that's what it takes to secure a conviction.
  [ link to this | view in chronology ]
- Anonymous Coward, 18 May 2016 @ 1:28pm
  
  Re:
  Also, if it's a "foregone conclusion", they should have no problem charging him with an actual crime.
  [ link to this | view in chronology ]
- Jeremy Lyman (profile), 19 May 2016 @ 4:28am
  
  Re:
  Yeah, they've already established that they don't have to show the court or defense how they broke into a system. "Just trust us, we got in. *wink*" Wave a folder in the air, shake your fist menacingly, and no one will ever know it's empty.
  [ link to this | view in chronology ]
David, 18 May 2016 @ 1:09pm

Nothing like a forced signed confession
"The government goes on to point out that Doe -- once he's unlocked the devices -- can then present his arguments for evidence suppression"

The government should lock up more people that refuse to confess to anything. I thought we were supposed to be innocent until found guilty, not locked up until we can prove our innocence.
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- Anonymous Coward, 18 May 2016 @ 3:00pm
  
  Re: Nothing like a forced signed confession
  I dunno, "innocent until proven guilty" and "guilty criminal filth, whose life may be done with whatsoever your betters' whims might dictate" seem like phrases that could be easily mixed up.
  [ link to this | view in chronology ]
- Anonymous Coward, 19 May 2016 @ 1:50am
  
  Re: Nothing like a forced signed confession
  Just look at it in a more positive light. The U.S. are leveling the playfield by aligning their justice system with the rest of the world's superpowers. You know, China, Russia, etc. /s
  Honestly, it's too good a case for them to drop. They're banking on setting legal precedent.
  Also the guy's life is now ruined anyway, regardless of the drives containing illegal stuff.
  [ link to this | view in chronology ]
Anonymous Coward, 18 May 2016 @ 1:12pm

Irreparable harm
For this harm to be reparable, I would expect the government to offer Doe access to both memory erasure and a time machine, such that once he decrypts the devices, he can get back that seven months (and counting!) he has lost. If it is not prepared to give him back that time (which, based on current technology, is impossible), then the harm from such confinement is irreparable.
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- RightShark, 18 May 2016 @ 3:41pm
  
  Re: Irreparable harm
  (which, based on current technology, is impossible)
  
  If only the smart people in Silicon Valley would put their minds to it...
  [ link to this | view in chronology ]
That Anonymous Coward (profile), 18 May 2016 @ 1:14pm

But we can't go forward unless he hands us the evidence we think is on these devices, so lock him away from the world and force him to do this.

It is amazing that with no actual evidence beyond someone who has animosity towards the defendant and an expert who is offering a hunch rather than actual evidence are all it takes.

But I guess because the alleged crimes are so heinous, we can bed the law & bedrock of the nation to get to where we need to be... I mean he has to be a bad man... this woman who dislikes him and an 'expert' playing a hunch is enough.
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- David, 18 May 2016 @ 2:10pm
  
  Re:
  And what about his right to a speedy trial? Does the prosecution get to delay that indefinitely until they have the evidence/forced-confession they want?
  
  I have no love for these perverts, but if we start to regularly deny some people due processes, eventually it will be denied to everyone.
  [ link to this | view in chronology ]
  - That Anonymous Coward (profile), 18 May 2016 @ 4:29pm
    
    Re: Re:
    Dude might be a pedo, might not be.
    Right now he is only accused of a crime, supported by the thinnest of "evidence" & hunches.
    
    If he doesn't get fair treatment from the court, what can anyone else expect? The All Writs Act is a magic tool that can do anything, even circumvent a citizens rights. The only "witness" can't even say what she actually saw, or on what device... and on the basis of this he sits in jail.
    [ link to this | view in chronology ]
  - John Fenderson (profile), 18 May 2016 @ 7:10pm
    
    Re: Re:
    There's been no effective right to a speedy trial in my lifetime.
    [ link to this | view in chronology ]
That One Guy (profile), 18 May 2016 @ 1:22pm

Dodging responsibility the government way
There can be no question that loss of liberty is a recognized harm. But Doe’s incarceration is by his own hand. His release pending an appeal is entirely avoidable through obedience to the court order.

By the same logic if a mugger pulls a gun on you and tells you that you either hand over your wallet or they'll shoot you, should you refuse and get shot as a result they aren't responsible at all, it's all your fault for refusing to hand over your money. You could have handed over your money after all, but decided not to and as such the gunshot wound is entirely your fault.

The accused wasn't the one who decided that he'd really like to be locked in a room all by himself, without a finding of guilt and potentially for the rest of his life, and he wasn't the one that set his release conditions of 'Give us the evidence we need to build the case against you', the idea that he's the one responsible for his continued incarceration doesn't pass the smell test.

As for the argument that he should decrypt the devices and then argue for suppression after the fact I have to wonder who they think they're fooling for that one. The judge has already demonstrated that they see nothing wrong with forcing him to provide the decryption password, there's absolutely no chance they'd then turn around and agree that any evidence acquired from the forced decryption isn't admissible.
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- Anonymous Coward, 18 May 2016 @ 3:52pm
  
  Re: Dodging responsibility the government way
  The trial judge won't buy those arguments but these are arguments for the appeals courts.
  [ link to this | view in chronology ]
  - Uriel-238 (profile), 18 May 2016 @ 4:33pm
    
    Arguments for the appeals courts?
    Because appeals court jurists are more ammenable to rule of might?
    
    The gun currently at Doe's head can be pointed at any of us next. All of us.
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    - Wendy Cockcroft, 20 May 2016 @ 2:36am
      
      Re: Arguments for the appeals courts?
      Indeed. When due process is believed to be an impediment to justice the ends justify the means if the criminal is "bad" enough. Here's the problem: if you're going to accept that such an attitude is okay, where does it end?
      
      To effectively enforce the rule of law, those who have the authority to do so need to uphold it themselves. Right now, to be in law enforcement is to be above the law. That's absolutely terrifying.
      
      As Uriel correctly stated, any one of us could fall foul of that for any reason. That's why even the most heinous vermin need the full protection of the law; allowing subjective interpretations of what constitutes "heinous" and "vermin" might put an opinionated smart alec like me in the firing line sooner or later because someone in authority doesn't like what I say online.
      [ link to this | view in chronology ]
  - That One Guy (profile), 18 May 2016 @ 5:14pm
    
    Re: Re: Dodging responsibility the government way
    That... doesn't make it any better. 'Screw yourself over for this case and if you appeal you might have a better chance next time.' He's still being compelled to make the prosecution's case for them, under at most the possibility that the appeal court might be willing to suppress the evidence that he provided.
    [ link to this | view in chronology ]
- Anonymous Coward, 18 May 2016 @ 4:05pm
  
  Re: Dodging responsibility the government way
  Something that caught my eye was the government's use of the phrase "obedience to" rather than "compliance with". That's a nice little bit of social-dominance word choice there, a reminder that government is Master.
  [ link to this | view in chronology ]
- Anonymous Coward, 19 May 2016 @ 3:24am
  
  Re: Dodging responsibility the government way
  I can think of one smell test it passes....
  [ link to this | view in chronology ]
DigDug, 18 May 2016 @ 1:29pm

5th Ammendment violation, plain and simple.
I don't give a flying fuck what that Judge thinks, the 5th ammendment covers this 100%.

Any judge that disagrees with that should be pulled from the bench by their short-hairs and hung from their ankles until they see reason.

Their punishment will be purely of their own making, all they have to do to be done with it is to enforce the Constitution they swore to uphold.
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- Anonymous Coward, 18 May 2016 @ 3:58pm
  
  Re: 5th Ammendment violation, plain and simple.
  Someone needs to have a quiet word with the judge: "Sir, do your job according to the constitution or you'll do your job according to corruption."
  [ link to this | view in chronology ]
- Atkray (profile), 18 May 2016 @ 8:57pm
  
  Re: 5th Ammendment violation, plain and simple.
  Ah crap, here comes another attempt to find out who is threatening federal judges.
  
  Someone wake up Paul Levy.
  [ link to this | view in chronology ]
- Anonymous Coward, 18 May 2016 @ 11:11pm
  
  Re: 5th Ammendment violation, plain and simple.
  The american government ignores any silly constitutional rights people have when they get in the way of imprisoning people they do not like.
  
  The fact people are not in revolt over this just means it will continue to get worse.
  [ link to this | view in chronology ]
Anonymous Coward, 18 May 2016 @ 1:46pm

Remember when Obama said his administration would never use indefinite detention?

But then again who can keep all with all of Obama's lies.
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- Wendy Cockcroft, 20 May 2016 @ 5:34am
  
  Re:
  So much for Kang, but what makes you believe that Kodos will be any better?
  [ link to this | view in chronology ]
Anonymous Coward, 18 May 2016 @ 1:48pm

Tyranny.
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Anonymous Coward, 18 May 2016 @ 1:51pm

Irony
Officer to suspect during arrest:
You have the right to remain silent and refuse to answer questions. Anything you say may be used against you in a court of law. You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future. If you cannot afford an attorney, one will be appointed for you...

Judge & DA to defendant:
Tell us your password or be in contempt

What the fuck?
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- DannyB (profile), 18 May 2016 @ 3:00pm
  
  Re: Irony
  I had to do a double take . . .
  You have the right to consult an attorney before speaking to the police
  You have the right to insult an attorney before speaking to the police
  [ link to this | view in chronology ]
- Anonymous Coward, 18 May 2016 @ 3:44pm
  
  Re: Irony
  Miranda rights have to do with your relationship with an officer of the law. They're saying that any interactions between you and an officer can be used against you in court.
  
  Once you're in court, the judge makes the rules. He can call on officers to be witnesses, or he can just tell you to hand over the evidence or be in contempt.
  
  What gets me in this case is that I thought that you couldn't provide evidence against yourself? It seems to me that the court is saying "give us the password. If you're innocent, you're providing proof of that innocence. If you're not innocent, you're only providing access to that proof, not testifying against yourself."
  
  I'm not sure I like the direction THAT is going, as this could be used to get around that particular rule in the majority of cases.
  
  The other thing going on here, is that it's obvious that the court and the prosecution have both already decided he's guilty. And he likely has child porn on his drives. He's also a police investigator, and has likely worked on CP cases. As a result, he likely has this data stored on the drives. The prosecution might even have evidence that he copied the files in question from some police datastore to a removable device. This doesn't necessarily make him a kiddy fiddler, but with the current laws, possession on personal equipment is more than enough to convict, even if he had been using the material to infiltrate a CP ring for a bust.
  
  He knows that if he decrypts the drive, they'll find the CP, and his life is pretty much ruined, with 0 chance of finding work, and all his previous friends and acquaintances loathing and abandoning him, no matter what the situation was that ended up with him having those files on his drive.
  
  At least this way, the question is still unanswered and he gets free room and board. I can see why he'd take that option.
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  - Hephaestus (profile), 18 May 2016 @ 7:13pm
    
    Re: Re: Irony
    If you're innocent, you're providing proof of that innocence. If you're not innocent, you're only providing access to that proof, not testifying against yourself."
    
    Its odd but when I read that, I immediately thought of another wonderful moment in US history.
    
    If you are innocent you will drown and not be considered a witch. If you survive, we will burn you as a witch.
    [ link to this | view in chronology ]
crade (profile), 18 May 2016 @ 2:08pm

Doe should learn from our gov't. The correct thing to do in this case is to pretend you lost the password and it's now impossible for you to decrypt the thing. Sorry. Would if I could, and all that.
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- Anonymous Coward, 18 May 2016 @ 3:30pm
  
  Re: Lost His Password
  Wrote it down on the back of the CIA's Torture Report.
  [ link to this | view in chronology ]
- Anonymous Coward, 18 May 2016 @ 3:52pm
  
  Re:
  This isn't all that improbable either -- I keep my encrypted drive passwords in my keychain and never have to actually use them. However, my keychain is slaved to my computer password, so I also never need to use my keychain password. As a result, in order for me to access the data on those drives, they have to be plugged in to the correct computer logged in with the correct password/account.
  
  So yeah; I can truthfully say I have no idea what my external drive passwords are, nor the password for the password manager that stores those passwords. I could potentially take it one step further and use my phone's bluetooth proximity to unlock the computer, but then I'd be SOL if I ever lost the phone.
  
  I could probably work out my drive passwords given enough time and incentive, but this case doesn't seem to provide any incentive -- even life in solitary confinement is probably preferable for this guy to life in jail/public branded as a CP offender.
  [ link to this | view in chronology ]
- Anonymous Coward, 18 May 2016 @ 5:27pm
  
  Re:
  "The correct thing to do in this case is to pretend you lost the password and it's now impossible for you to decrypt the thing"
  Then have fun staying in jail forever because the guy said that but the judge didn't believe him saying that the guy never had problems unlocking the laptop before so he can't have forgotten the password.
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  - crade (profile), 19 May 2016 @ 7:56am
    
    Re: Re:
    Hmm... it always works when the gov't does it!
    [ link to this | view in chronology ]
JonC (profile), 18 May 2016 @ 2:10pm

Ok, ok, I'll unlock the phone.
Let's see, was this the password? No, maybe this was? ... Last try, hope I get it right.
Uh, oh. I think I just wiped the phone, sorry about that. Can I go home now?
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Anonymous Coward, 18 May 2016 @ 2:12pm

You know you're supposed to drop the charges if you can't supply the evidence to go to trial. Holding someone in contempt for not supplying you with the evidence you need to convict them is exactly what the 4th Amendment is about. If you have to coerce someone into it, you're obviously violating their due process rights. If you can hold someone in contempt for an indefinite amount of time, then you're doing justice wrong.
[ link to this | view in chronology ]
- Anonymous Coward, 18 May 2016 @ 3:56pm
  
  Re:
  The judge is holding him in contempt for not supplying the court with the password.
  
  The prosecution is the one going to trial. The problem here is contempt of court, not contempt of prosecution.
  
  That said, you're right -- if prosecution already has a case, then the judge shouldn't need to compel this evidence, except possibly as the case unfolds as corroborating evidence.
  [ link to this | view in chronology ]
- nasch (profile), 19 May 2016 @ 11:45am
  
  Re:
  Holding someone in contempt for not supplying you with the evidence you need to convict them is exactly what the 4th Amendment is about.
  
  5th.
  [ link to this | view in chronology ]
Anonymous Coward, 18 May 2016 @ 2:41pm

I'm so glad this article stated the accused's reasoning for not unlocking his devices.

Oh wait, no it didn't.
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- JBDragon (profile), 18 May 2016 @ 3:13pm
  
  Re:
  Doesn't matter what the reason is. It's HIS Data. He has the right to not hand over a key. The police have no case. No Evidence. Just a suspension. Maybe he has child porn on that computer. Maybe it's nudes of a past Girlfriend. Maybe it's some computer scam. Maybe it's just Health related Data. Who the F knows, and who cares.
  
  Hey, how about the Police just throw YOU in jail, accuse you of just saying something, and until you admit it, you don't get out. Doesn't matter if you did it or not. Then the Judge goes along with it, keeping you in jail. No proof of anything, just a suspicion. How would YOU like it. Basically the police could just throw anyone in jail they don't like and make stuff up and you're in jail forever. No trial, no nothing until you admit what you didn't do and still get thrown into jail forever anyway.
  
  What country is this again? The constitution is thrown right out the window. Maybe this guy is what the police say he is, if that's true, they wouldn't need him to decrypt his computer. One thing is for sure, it's not worth it going down this road with the majority losing their rights because of a few bad apples.
  
  Anything can be justified in the name of some type of Child Abuse and Terrorists these days!!!
  [ link to this | view in chronology ]
  - Anonymous Coward, 18 May 2016 @ 11:12pm
    
    Re: Re:
    Seems like nazi germany these days
    [ link to this | view in chronology ]
- Anonymous Coward, 18 May 2016 @ 3:35pm
  
  Re:
  Reasoning? He has rights, and he believes the court to be violating them in their demand for the key(s).
  
  Does a court have to give us permission before we're allowed to exercise a right? That would be a bit odd, given that a lot of our rights were put down on paper for the exact purpose of not letting the government do anything it wants to do, carte blanche.
  [ link to this | view in chronology ]
Anonymous Coward, 18 May 2016 @ 2:47pm

Put the Judge in jail
Since the judge has no problem with keeping him there for not turning over the passwords, force the judge to do the same thing. If he can't provide the passwords, the judge has to go into solitary until he agrees to cooperate.
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Uriel-238 (profile), 18 May 2016 @ 3:32pm

Can these arguments be used...
In future cases to define the character of the state? After all, this should present a clear indictment that the State doesn't actually give a fuck for the rights of the accused, and by proxy, the rights of its own people.

What is the legitimacy of a court under tyranny but for the barrel of a loaded gun?
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Sunhawk, 18 May 2016 @ 3:36pm

I'm starting to suspect that the claims of enough evidence to prosecute already are... over-stated.

And that what they *do* have is the word of someone that they saw something that resembled child porn on a device the accused owned at the time and a 'guess' of their expert.

I don't think they actually have much more to go on, to be honest.

But, more importantly, he hasn't even been charged yet - they're effectively using the All Writs to demand that he decrypt the drive.

And that too suggests to me that they don't have enough evidence for a prosecutor to charge him without what they're hoping is on the drive. Otherwise they'd charge him and have the judge demand he decrypt based on that (as is the case in similar cases elsewhere).
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- Anonymous Coward, 19 May 2016 @ 2:11am
  
  Re:
  Either that or they used "parallel reconstruction" and now require access to the actual data, lest the evidence be thrown out.
  
  But yeah, your version works just as well. IIRC in the U.S around 2-4% of DEATH ROW inmates are wrongly convicted.
  
  Accepting false eyewitness identification, fabricated evidence, racial prejudice... you name it, the cops have done it.
  [ link to this | view in chronology ]
Anonymous Coward, 18 May 2016 @ 4:13pm

Sooo...
If he forgets his password as we all sometimes do the punishment is life in prison?
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- Anonymous Coward, 18 May 2016 @ 4:36pm
  
  Re: Sooo...
  The more time he spends in prison, the less likely he is to remember his password.
  [ link to this | view in chronology ]
- Uriel-238 (profile), 18 May 2016 @ 4:54pm
  
  "If Doe forgets his password"
  Is there any way to tell that he hasn't?
  
  I don't remember passwords after seven months of non-use.
  [ link to this | view in chronology ]
- Uriel-238 (profile), 19 May 2016 @ 1:29am
  
  Remembering his password... or not...
  Apparently, Doe tried entering a couple of passwords which failed, which may be indicative that he doesn't know the passwords to unlock the drive.
  
  The judge and prosecution continue to assume he knows the passwords and isn't telling.
  
  Maybe they want him locked up forever.
  [ link to this | view in chronology ]
  - Anonymous Coward, 19 May 2016 @ 9:00pm
    
    Re: Remembering his password... or not...
    Nothing like making up any excuse to get rid of someone you don't like because you know you will never be called out on your fascist behaviour
    [ link to this | view in chronology ]
  - Anonymous Coward, 20 May 2016 @ 1:01pm
    
    Re: Remembering his password... or not...
    Who needs convictions when other means will work just as well?
    [ link to this | view in chronology ]
  - Anonymous Coward, 21 May 2016 @ 4:13pm
    
    Re: Remembering his password... or not...
    1) They're holding Doe in prison indefinitely because they're certain he remembers the passwords to unlock his computer.
    
    2) They want the passwords so they can access Doe's computer, because they're certain it has child porn on it.
    
    3) Conviction is a forgone conclusion because the government will put you in prison until you provide a way for them to put you in prison.
    
    It used to be amusing hyperbole, but now we're literally under Cardassian Law: Guilt was confirmed prior to court proceedings – the trials themselves served only as a way to demonstrate the wrongdoing of the defendants and to illustrate the consequences of their alleged criminal behavior.
    [ link to this | view in chronology ]
Anonymous Coward, 18 May 2016 @ 5:00pm

Because we all know that DOJ shit don't stink. Cut his hands off and put him back on the street as an example to any others thinking they have rights.
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MarcAnthony (profile), 18 May 2016 @ 5:43pm

Inquisition II
Any conclusion that is forgone is a non-argument; evidentialism requires proof. It’s possible the guy is guilty as sin, but he is clearly being denied due process by being confined without charge. The growing use of the foregone conclusion doctrine, coupled with the All Writs Act, is nothing short of the second coming of the Inquisition—the State just knows that you are guilty; this is not history we should suffer to repeat.

The Act specifically states it must be used in accordance with the principles of law. What principle is it where a citizen has to help their government understand encoded works? The State’s characterization of this act as mere production is intentionally misleading. He is being ordered by an entity that is barred from so doing to work against his own rights and realize whatever evidence may be on that drive. Code is considered speech, so such decoding would naturally be testimonial.
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Paraquat (profile), 18 May 2016 @ 6:14pm

banana republic without the bananas
If this was happening in Russia, the USA would be condemning this as another of Putin's "severe human rights violations." Or if it was Zimbabwe, we'd be saying "what do you expect in a banana republic."

At least Zimbabwe has bananas.
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Justme, 18 May 2016 @ 8:20pm

Just a thought. . .
Maybe he has a copy of the bill of rights on his hard drive?

And considering how hostile our justice department has become to those ideals, he fears being added to the official list of known radicals, which is just a gateway to the hard stuff... the official kill list.

Stranger things have happened. . .
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- Anonymous Coward, 20 May 2016 @ 2:31pm
  
  Re: Just a thought. . .
  "Maybe he has a copy of the bill of rights on his hard drive?"
  
  I had a similar thought back in the day when attorneys for wikileaks were getting their hard disks boosted at airports. There are actually several approaches that you could use to show these guys for the asses they are, and make a bundle while your at it.
  
  A ciphered disk. Contempt of court. A few months go by.
  
  "Ok, I'll decrypt it now". Then comes the lawsuit for false imprisonment and you trade a couple months in solitary for a million dollar settlement.
  
  Turnabout is fair play after all.
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Daydream, 18 May 2016 @ 9:22pm

Forget that it's the police...
So from what I read...
A heavily armed militant organization with a history of robbery and murder (Philadelphia police, asset forfeiture and shootings)...
...Have kidnapped and imprisoned an ex-member of their organization because they think he has sensitive/dangerous information (this 'John Doe' and child porn charges)...
...And they're trying to coerce him into giving up the passwords to his devices so they can see what information he has.

Are we SURE this is a child porn case? Not some attempt to 'take care of' a whistleblower or spy?
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Anonymous Coward, 18 May 2016 @ 10:43pm

Would the situation be the same if he had just encoded or encrypted some text/information using good ol' pen and paper, by hand? If the prosecution had something that looks like the Voynich Manuscript, could a judge order the guy to decode it or explain what it meant?

I'd call it the same situation, but then I picture someone saying 'This is different because it's on a computer.' This statement is frequently followed with common sense being tossed out the window.
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Anonymous Coward, 18 May 2016 @ 11:08pm

Congratulations Americans it is officially a Tyranny you live in.

Enjoy everything that comes with that. As it will happen to everyone not just those that commit crimes.
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Anonymous Coward, 19 May 2016 @ 2:12am

Missed the best part!
In this case John Doe isn't even accused of doing something!

The case is USA vs. Apple Mac Pro Computer. So his computer is accused of breaking the law. That means the US Gov wants to force Doe to force his Computer to turn over evidence which then could be used against Doe.

In human terms: Unless you convince your friend to tell the court what you did, you will stay in jail forever because another friend of yours thinks you did something wrong.
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- Anonymous Coward, 19 May 2016 @ 2:25am
  
  Re: Missed the best part!
  IANAL, but this might hold some relevance:
  Forced Decryption as a Foregone Conclusion
  http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1069&context=clrcircui t
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  - Anonymous Coward, 19 May 2016 @ 3:43am
    
    Re: Re: Missed the best part!
    That is an interesting view and thank you for that link, good read.
    
    One thing thou...
    "And the second element, location, is satisfied just as plainly: the unencrypted version’s “location” is the same as the encrypted computer’s."
    
    No it's not. The computer is on a desk but the unencrypted version is inside a chip, inside a metal box, inside a plastic container, on a desk. Or...
    The encrypted version is stored on the HD from byte x to y. Two things, first: The unecrpyted version doesnt exist! Hear say, as is used in this case, is not sufficient evidence that something is true. Otherwise, as example, I heard you say that you killed people and I think I saw pictures on your PC. Even if that is complete BS, people might find something else that will incriminate you while searching your HD. Unlicensed copy of a movie/game maybe? They got you for this now if you encrypt it.
    
    And 2nd if the file would exist then it would be located at c to d and not at location x to y. Unless you know the exact position of c and d the location is unclear. Otherwise one could argue that a location is between New York and Los Angeles. Sure you know that the object is in a certain area but not the exact location i.e. house of Mr. X.
    
    2nd vector might be forced communication. By forcing Doe to decrypt the files they force him to communicate with his Mac. Speech and written text is communication and therefor iirc under the 5th you can not be forced to communicate information.
    
    IANAL too so best guess and open for interpretation.
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  - Anonymous Coward, 19 May 2016 @ 4:12pm
    
    Re: Re: Missed the best part!
    That was an interesting read. It reminded me that lawyers work with a system that only needs to make internal sense. Can anyone recommend a good online course covering the metaphysics of law?
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Manok, 19 May 2016 @ 3:40am

So... we need a web site that holds our Truecrypt passwords... ridiculous long passwords... a web site not hosted in the U.S.

And these passwords will expire after x months when not accessed. Then there's no way to recover the password after a certain time has expired, and one cannot be held anymore 'indefinitely-until-you-reveal-your-password' in jail.

It's not too dissimilar from the idea the other day in the comments to hold a secret password on a phone memory card, that's being used by apps, and once that mem card is destroyed, you cannot be forced to give your password anymore, because it's gone.

(In short, we need a password system which doesn't rely on remembered passwords, but rather 'held-somewhere' passwords.
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- Anonymous Coward, 19 May 2016 @ 9:37am
  
  Re:
  The problem with you system, is how do you validate that you are you when you want to use your password, while preventing others recovering your password. Why you use some secret means of veridication, like a password, which the courts can try and compel you to reveal.
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AJ, 19 May 2016 @ 4:02am

He says he doesn't know his password. They cannot prove he doesn't know it, so they are holding him on an assumption of contempt. They don't even know if he's actually in contempt because they can't prove he doesn't know the password.

This country allows us to hold someone indefinitely on an assumption of guilt? Time for a revolution.
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- Anonymous Coward, 19 May 2016 @ 4:20pm
  
  Re:
  It is better that ten guilty persons escape than that one innocent suffer. - William Blackstone
  
  I'm more concerned with bad guys who got out and released than I am with a few that, in fact, were innocent. - Dick Cheney
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me@me.net, 19 May 2016 @ 7:43am

Tough one given the details
No sympathy for the guy given the circumstances that he's in hot water, BUT this is imo an abuse of power by the Judge.
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- Uriel-238 (profile), 19 May 2016 @ 4:26pm
  
  Re: Tough one given the details
  You may not have sympathy for a purveyor of child porn, but we don't know that Doe actually is one.
  
  The alleged forgone conclusion against him is pretty darn thin. They haven't even charged him with a crime!
  
  Unless you're positing that we all are guilty enough to deserve prison time, including yourself.
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Michael Rivero, 19 May 2016 @ 8:26am

The government has become a dictatorship
If the government does not have actual evidence that the hard drives contain child porn, it is a violation of the Fourth Amendment to go on a fishing expedition, and clearly a violation of the Fifth Amendment to demand the defendant help to build the case against himself.

All the government has is hearsay evidence. The judge erred in considering that sufficient to hold the man in jail as a punitive action.
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Anonymous Coward, 19 May 2016 @ 8:27am

The argument that he is imprisoned on his own accord is tantamount claiming that an adult who grabs a child's wrist and slaps the child in the face with the child's own hand didn't hit the child. It's silly. The government is the one exerting the force here in violation of the 1st and 5th amendments.
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RAC, 19 May 2016 @ 8:44am

How can the authorities be so certain sure anything illegal is on the computer, unless of course they put it there themselves. The guy might have other stuff on there that the authorities want and they might have put the illegal porn on his machine to take him down.
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- Anonymous Coward, 19 May 2016 @ 9:34pm
  
  Re:
  or they are using it as an excuse to imprison someone they do not like
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John85851 (profile), 19 May 2016 @ 10:47am

Would this happen in the physical world
For example, would someone be held in solitary confinement because he refused to open a safe that someone said might, maybe, contain something illegal? Then shouldn't a phone be treated the same as a safe, as in: people have the 5th Amendment right not to incriminate themselves.

But I think a previous poster is correct and the guy (or his lawyer or both) aren't "playing the game", which is causing the judge to get upset and make this kind of ruling.

I mean, come one, it's just a 4-digit code to the phone. If he has nothing to hide, then he should have no problem unlocking it. So what if that's against the constitution- he's been accused of having child porn, so he must be guilty of something.
*sarcasm off*
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- Uriel-238 (profile), 19 May 2016 @ 11:34am
  
  Re: Would this happen in the physical world
  It could happen in the physical world. While our safes are far (far, far) from impenetrable (Thanks to heat lances they're more vulnerable than ever), it would be possible to design a safe that thermited its contents once it detected a penetration attempt.
  
  Currently we use layers of safety glass (the stuff that shatters into tiny fragments) holding open a trigger (usually to seal the vault shut to buy time). Make it, instead, trigger a payload, and you have a secure vault in the physical realm.
  
  Highly illegal, I'm sure, but probably used in the underground.
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limbodog (profile), 19 May 2016 @ 11:17am

Well
>But Doe’s incarceration is by his own hand

"Stop hitting yourself!"

What utter crap. What's the penalty for destruction of evidence? If he promises to unlock the hard drive, but then smashes it instead, can he walk away for time already served?
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Pronounce (profile), 19 May 2016 @ 12:01pm

He's Another Enemy of the State Obviously
I'd hate to be in his shoes. I was thinking, what if the information on the drive is something potentially dangerous for someone else? A scenario to the effect he has incriminating evidence of a powerful political leader and the child porn charge is a trumped up charge to get at the information. Any number of whistleblowers could have their names raked through the mud by the media with no ability to get justice.
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- FBI/DOJ/NSA, 19 May 2016 @ 12:39pm
  
  Re: He's Another Enemy of the State Obviously
  Hey, great idea, we'll get right on that!
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- Uriel-238 (profile), 19 May 2016 @ 4:12pm
  
  Re: He's Another Enemy of the State Obviously
  Unlike the Nile, which flooded every single year on schedule without a hitch, the rivers of South America would dry up frequently, and stay dried for years, sometimes decades at a time.
  
  And famine and pestilence followed. Which ruined the rest of that generation for everyone.
  
  And so, unlike the Egyptian pantheon, which were pretty durned laid back as far as gods go, South American gods were big on the death and eating worshipers like potato chips.
  
  When one of them, say Huitzilopochtli did notice you, you had best be showing your best contrition and piety all the while carving the beating heart out of some nice sports-star's (or virgin's) chest. If you weren't or didn't snap right to it, he'd start getting smitey really fast.
  
  Not that this is related to anything, I mean when an official around here in the United States gets to coveting your land or your spouse or is worried about what you know, or you just cut him off on the freeway on a bad day and he's feeling particularly vengeful, and he happened to remember your make and model and first three letters of your plate... well, expect the Einsatzgruppen to come a'knockin'
  
  I think I'm saying that in America it's a good idea to lay really low.
  
  Like under the baseboards of your home.
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Anonymous Coward, 19 May 2016 @ 3:22pm

If the FBI can operate a child pornography website for weeks, I wouldn't put it past them to fake or plant evidence.

Just saying...
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Rekrul, 19 May 2016 @ 5:34pm

This is no way affects his appeal. He would still be able to persist in his appeal, and, if successful, the evidence the government would gain through forcing Doe to unencrypt his devices would be suppressed.

And of course if there is child porn on the drives, the government would argue that any violations of his rights or improper conduct by them should be ignored because: Kids!

Judges in this country have far too much power. They can slap you with a contempt charge for pretty much any reason and you have little recourse to fight it.
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Anonymous Coward, 20 May 2016 @ 5:45am

I'm starting to think this government should be violently overthrown.
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Anonymous Coward, 28 May 2016 @ 12:56am

Is there any limit to how long he can be held in contempt of court? Is there any precedent for a judge being forced to reverse their contempt charge after a certain amount of time? I know that in some cases, judges have willingly reversed it, either on their own, or after having been provided a compelling argument.

Even in the UK, which has mandatory key disclosure laws and is rather infamous for liberal use of them, you will still be locked up for only two years maximum, or five if the charges are related to terrorism. But in this case, is he looking at a lifetime of imprisonment?
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- nasch (profile), 28 May 2016 @ 8:00am
  
  Re:
  Is there any limit to how long he can be held in contempt of court?
  
  I believe it's completely up to the judge. As long as the judge decides he is still in contempt, he can keep him in jail.
  
  Even in the UK, which has mandatory key disclosure laws and is rather infamous for liberal use of them, you will still be locked up for only two years maximum, or five if the charges are related to terrorism.
  
  If he were being charged with violating some kind of disclosure law like that, he would have to be tried and sentenced to a definite term, but he is being held on contempt of court, which is different.
  
  https://en.wikipedia.org/wiki/Contempt_of_court#United_States
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  - Uriel-238 (profile), 28 May 2016 @ 10:33am
    
    How much time before this incident of contempt is peculiar or conspicuous?
    I think the question becomes, then, how much longer before Doe's incarceration because an unusual use of a Contempt ruling and is regarded as abusive.
    
    And then what can be done. If there is no legitimate means to counter a contempt, does that mean illegitimate means are necessary to curb a judge?
    
    H. Beatty Chadwick was held in contempt for fourteen years, the current record-holder for longest imprisonment based on contempt. He was held for failing to release money to his ex-wife that the judge was sure he had. Only after fourteen years was it decided that the judge guessed wrong.
    
    That's a long time for a judge's mistake.
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