The Fifth Amendment Vs. Indefinite Jailing: Court Still No Closer To Deciding On Compelled Decryption
from the might-as-well-take-your-time,-as-it's-actually-someone-else's dept
We wrote about this case last April, and it appears very little has changed over the last 10 months. Francis Rawls, a former Philadelphia policeman, is still in jail because he has refused to decrypt his computer for prosecutors. At this point, Rawls has been jailed for sixteen months on contempt of court charges.
How long will Rawls stay jailed without a criminal conviction? The prosecution says that's up to him. As for the appeals court, it apparently doesn't feel a pressing need to address the unresolved issue: whether or not the Fifth Amendment protects citizens against being forced to turn over passwords.
The federal court system appears to be in no hurry to resolve an unresolved legal issue: does the Fifth Amendment protect the public from being forced to decrypt their digital belongings? Until this is answered, Rawls is likely to continue to languish behind bars. A federal appeals court heard oral arguments about Rawls' plight last September. So far, there's been no response from the US 3rd Circuit Court of Appeals, based in Philadelphia.
If Rawls' devices had been secured with a fingerprint, there's a good chance he'd already have been forced to unlock his devices. There haven't been a lot of decisions pertaining to the use of fingerprints to decrypt devices, but those we have seen indicate judges don't view the taking/application of suspects' fingerprints to be "testimonial." Unlocking a device that contains evidence to convict a person apparently doesn't undermine their right to not be forced to testify against themselves. The reasoning in a recent appeals court decision was that a fingerprint is not something stored in a suspect's mind. Therefore, it's not testimony. It's, for lack of better words, a bodily "fact," like the blood stored in a suspect or a suspect's resemblance to a person described by eyewitnesses.
Because Rawls is facing child pornography charges, there hasn't been much public support for his legal battle. The problem with ignoring this one and waiting for a "better" case to roll around is that the weakening (or rewriting) of Constitutional protections almost always starts with the worst cases. Once precedent and/or legislation is in place, the diminished protections affect everyone -- even those whose alleged actions are far less socially-abhorrent as the accused in this case.
The EFF, however, has stepped into the breach -- as it has in other cases where child porn suspects are central to battles over Constitutional rights.
The Electronic Frontier Foundation told the court in a friend-of-the-court brief (PDF) that "compelled decryption is inherently testimonial because it compels a suspect to use the contents of their mind to translate unintelligible evidence into a form that can be used against them. The Fifth Amendment provides an absolute privilege against such self-incriminating compelled decryption."
The other aspect of this case that bears watching is the All Writs Order the government has deployed to obtain this fingerprint. The All Writs Act of 1789 is seeing an uptick in deployment 200+ years after its passage. The government uses this any time it can't find statutory authority for its demands. It's a feature of the Act, not a bug, and its increased use suggests several other laws are badly in need of updating -- and not just in the government's favor. There are at least as many gaps in protections as there are gaps in authority in the laws governing digital data and communications, many of which were written long before the internet became the main means of public communication and storage capacity/prices allowed any person to store several lifetimes of information on devices small enough to stick in their pockets.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: 3rd circuit, compelled decryption, encryption, fifth amendment, francis rawls, passwords
Reader Comments
Subscribe: RSS
View by: Time | Thread
the accused shall enjoy the right to a speedy and public trial
https://www.law.cornell.edu/constitution/sixth_amendment
[ link to this | view in chronology ]
Re:
"A federal judge is never late, nor is he early. He rules precisely when he means to."
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
That exact scenario seems to have happened more than once.
The guy who was in prison for contempt for 14 years seemed to not know how to break it.
[ link to this | view in chronology ]
The court can probably compell
The all-writs act is not the best vehicle for this, but the foregone conclusion doctrine would allow it in a wide variety of cases. I also argue that this is probably the way it should be. There are times the Fifth Amendment would prevent compelled decryption, but if the prosecution can meet certain circumstances they probably should be able to compel decryption.
The article is available at: http://moritzlaw.osu.edu/students/groups/is/files/2016/02/11-Wiseman.pdf
[ link to this | view in chronology ]
Re: The court can probably compell
[ link to this | view in chronology ]
Re: Re: The court can probably compell
Maybe not tell them (that would be testimonial), but just show them. That way it's not testimonial! See how that works?
[ link to this | view in chronology ]
Re: The court can probably compell
Something unfortunate happens to lawmakers, judges, and people once you throw the phrase "with/on a computer" at a situation. I don't see where being compelled to divulge a password (which is something you know vs. something you are)is any different than being compelled to testify against yourself.
I believe that it should not be easy to prosecute. I believe that LEO must work hard to prove a crime occurred, what occurred, and who was responsible. We did not have computers 100 years ago, yet convicting criminals occurred before they were invented.
Shortcuts in justice rarely result in better justice.
[ link to this | view in chronology ]
Re: Re: The court can probably compell
But they do results in more successful prosecutions...
This is a WIN for the Tough on Crime politicians and judges, and a WIN for their private run prison cronies!
What's not to like? That is a literal WIN-WIN situation! /s
[ link to this | view in chronology ]
Re: Re: The court can probably compell
I think it's a matter of ability/effort. It's easier to get a safe cracker than to issue a warrant/subpoena and a motion to compel and opposition to defendant's motion to quash (or whatever it is they need to do) and then maybe the defendant refuses anyway and they still need the safe cracker. But with a sufficiently encrypted file, the government doesn't have that ability to crack it. So compelling the defendant is the only way they can do it.
[ link to this | view in chronology ]
Re: Re: Re: The court can probably compell
No, it is a matter of constitutional legality.
"So compelling the defendant is the only way they can do it."
Still does not justify ignoring the constitution.
[ link to this | view in chronology ]
Re: Re: Re: Re: The court can probably compell
Passwords kind of blur the line though. The password itself is certainly in a person's mind but the information its protecting is NOT.
I personally would like to see passwords protected under the 5th as do probably most people not involved with law enforcement, but because passwords do span the realms of both mind and external, they'll require some special handling and you can't just dismiss the discussion out of hand.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: The court can probably compell
[ link to this | view in chronology ]
Re: The court can probably compell
"Furthermore, as a matter of policy, showing [that the defendant has the ability to decrypt the files the government wants them to decrypt] by a preponderance of the evidence is sufficient."
I'm not sure if that's your conclusion or if you're describing the current state of policy. But for me, it is unacceptable to have any policy where someone may be detained *indefinitely* on a mere preponderance of the evidence, as determined by a judge and not a jury. Because that's what happens if someone can't decrypt something the court orders them to decrypt. It's a violation of due process and of the right to trial by jury, even if the courts don't say so because it's not in their interests.
[ link to this | view in chronology ]
Re: Re: The court can probably compell
Indefinite detention though is a related but separate concept that I never addressed and do not currently have firm conclusions on (I certainly have thoughts, but my thoughts often change after I researched a topic thoroughly). It raises other constitutional questions that were beyond my original scope and also brings up the fact that people forget over time. Even if they absolutely knew how to decrypt it at the time of their confinement, they may not know how to do so 18 months later.
[ link to this | view in chronology ]
Re: Re: Re: The court can probably compell
[ link to this | view in chronology ]
Re: Re: Re: Re: The court can probably compell
The next question is what are the limits of the coercive power the government can bring to bear through civil contempt? That is a separate question that involves a completely unrelated constitutional analysis with virtually no overlap with the first question. It also affects many cases not involving decryption since people have been detained indefinitely for refusing to hand over assets for instance.
Obviously, the government of the U.S. can NOT build a medieval rack and begin stretching the recalcitrant on it until they revealed the password. Also, obviously if they have the ability to use coercive power at all under civil contempt they do have the ability to detain the individual for at least some time if they do not comply.
The question of how long they can detain that person is a different analysis that would would look more at the Eighth Amendment than the Fourth or Fifth.
As I said, I have my personal thoughts (I do not think it should be indefinite), but I have not yet done the analysis to bring forth a fully developed argument about where the exact line should be either morally or based on current jurisprudence.
[ link to this | view in chronology ]
Re: The court can probably compell
WHat you are saying actually amounts to:
"The court can keep someone in prison indefinitely if they do not decrypt" , which is not the same thing at all.
Since it is entirely possible that a person in that situation might not be able to decrypt this is completely intolerable.
[ link to this | view in chronology ]
Re: The court can probably compell
I didn't agree with that argument when I first ran across it, and I still don't, and the 'forgone conclusion doctrine' is a pile of rot as far as I'm concerned.
The fifth prohibits forced self-incrimination, and forcing someone to decrypt someone is forcing them to provide evidence that will be used against them, even if that's limited solely to the fact that they can unlock the device/account, and therefore can be tied to the contents of it.
(Something which can be easily demonstrated by the accused simply requesting a legally binding grant of immunity regarding anything found in exchange for decrypting the device. Any guess on how quick they'd be to reject that deal?)
As for the forgone conclusion doctrine if it's actually a 'forgone conclusion' that they'll get access to something then great, they can do it themselves. If they have to force someone else to provide the evidence then it's pretty obviously not a 'forgone conclusion', as they didn't have it, and couldn't get it without compelling someone else to give it to them.
[ link to this | view in chronology ]
Re: Re: The court can probably compell
Torquemada would be proud of all we've achieved.
[ link to this | view in chronology ]
Re: Re: The court can probably compell
The question is closer to: Is it a foregone conclusion that the items in question exist in an ascertainable location that the person from which they are being demanded can readily access? The name of the doctrine (which has evolved slightly over the years) comes from a line in Fisher v. United states where the Court said "existence and locations of the papers are a foregone conclusion"
[ link to this | view in chronology ]
Re: Re: Re: The court can probably compell
That still strikes me as a 'cost/time saving measure', as well as a cheap dodge around the prohibition against self-incrimination.
'We know X is there' isn't going to hold up in court I would think, whereas 'The prosecution would like to submit X as Exhibit A' is.
The first isn't likely to be treated a legally admissible evidence, the second is, so while it may seem nit-picky it still strikes me as an important difference, and one that forced decryption makes the accused cross, if in no other way that someone decrypting a device and/or providing a password are, in that very act, providing evidence that can be used against them.
[ link to this | view in chronology ]
Worth noting
I happened across an encrypted file of mine a few years ago that I had not touched in more than five years. I know what was in it when last I looked, but I cannot get into it anymore. I didn't lose anything I still care about, but I'm very glad the government never alleged that container held incriminating evidence. If it had, I would be in the same situation this man is facing.
[ link to this | view in chronology ]
Re: Worth noting
Step 1. Infect their computer
Step 2. Create a truecrypt volume, just a few gigabytes should be enough
Step 3. Have police kick down their door and confiscate the computer
Step 4. Watch them rot in jail for being unable to decrypt the volume, or prove they do not know the password
[ link to this | view in chronology ]
The argument that a phone may contain "personal" information is misleading and dishonest. Your home office may contain personal information as well, and that does not stop a search warrant from being executed. The size of the information potentially stored at a location does not change the warrant.
Ruling to protect the phone,tablet, or other device would create a special class of things that would not work like any other space, place, or personal item. It would create a protection that does not have any other parallel in the physical world.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
Per count, i.e. per image?
[ link to this | view in chronology ]
My conundrum....
Them being a police officer I feel compelled to not give a flying fucking shit about their predicament.
As someone who deeply cares about the Constitution, this is a travesty of justice and the typical bullshit no one gives a fuck about. But I sure do notice a lot of people protesting other shit.
And on all writs...
"It's a feature of the Act, not a bug," ahem...
"issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."
So it is pretty clear that this is not in keeping with the usages and principles of the law... but this is TD, I don't expect you get any of this... after all, so very few others get it either.
Priorities... amiright?
Innocent people are in jail and a whole lot of fuckwitts care more about Trumps hairdo and his diarrhea of the mouth twitter spewing.
[ link to this | view in chronology ]
Re: My conundrum....
[ link to this | view in chronology ]
Re: Re: My conundrum....
Lost on you...
Apparently!
[ link to this | view in chronology ]
Re: Re: Re: My conundrum....
[ link to this | view in chronology ]
Re: Re: Re: Re: My conundrum....
In order to understand or learn what I am saying, you have several other things to learn and understand FIRST. Perhaps a little googling, yahooing, duckduckgoing, msning, or binglalinging would be in order here.
Go and search about things like the innocence project and the news stories about a few of these things.
And in this case, officer has not been proven guilty yet, and the judge is burdening the defendant with and unconstitutional court order. He is simply in jail because a Judge has the power to break the law and get the fuck away with it!
[ link to this | view in chronology ]
Re: Re: Re: Re: My conundrum....
Who is the innocent person you speak of?
"Presumed innocent until proven guilty" should ring a bell. Now, I do understand that this phrase is no where in the Constitution or Bill of Rights, but it is common law.
Yes, I know it is a former police officer. Yes, I am aware that a number do violate the law. The point and issue here is prove it.
Also, child porn is one of those interesting (in a bad way) crimes: If someone spams me with child porn, I am a felon. If I delete it, I am a felon twice over. This isn't a hypothetical, it has happened to others in the past.
Moreover, one can be convicted of child porn for nothing more than a cartoon depicting the act. No children involved at all.
I don't like child porn, I don't think it should not be illegal. I do think the law is overbroad and over prosecuted. After all, what elected prosecutor or judge want's their opponent to be able to throw the term "Soft on child porn!" at them?
The real solution, as is too often the case, is for voters to stop being entirely emotional in their policy choices and start applying some IQ to it. Unfortunately, while something can be done about being uneducated, as Ron White says, "You can't fix stupid."
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: My conundrum....
Dunknow, I'm thinking "hard on child porn" is not such a good thing either.
[ link to this | view in chronology ]
Re: Re: My conundrum....
The problem is that the legality of the court order flies in the face of the Fourth Amendment, except that it is on a computer. Which is a damned tiny excuse to except the Fourth.
[ link to this | view in chronology ]
Re: Re: My conundrum....
The law is pretty clear, you can be forced to unlock your electronic device,
The law is an ass because you might not be able to.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
You are right, but what is going on here is clearly unconstitutional. There is no shortage of examples where judges, police, politicians, and people just assume that because a computer or technology is involved there CAN be a different set of rules applied. The 4th and 5th are DAMN clear... only fool or someone looking to pollute the Constitution see otherwise because the Founding fathers are quite extensively ON RECORD about what each of the constitutional amendments mean.
The conundrum is caring about a dirty cops plight and being a well versed constitutional wizard and remembering that even assfucks must have rights or the innocent lose theirs too!
[ link to this | view in chronology ]
This is from the eff website. It is not as cut and dried as you think it is. Do you know the specifics of this case? Does the judge have specific knowledge of what is on the phone? Maybe this guy should call the eff, but since he has been in jail for 16 months, I am pretty sure that he knows that he wouldn't win.
[ link to this | view in chronology ]
Re:
The EFF has a reputation to maintain, therefore they have to play by their "corrupt" rules to "remain relevant". If anyone comes off as a True supporter of the constitution you can quickly find out how fast they can become marginalized. They will find it difficult to file amicas curie (friends of the court) and be disregarded.
This is very cut and dried. The moment someone is completed to open their mouth to do ANYTHING, is the moment their 5th Amendment rights have been trampled. It is then up to law enforcement to do the footwork to "acquire" the passwords or keys under their own power and of course by warrant.
A judge cannot use allwrits to overcome constitutional rights. The waters of Constitutional understanding have been extensively muddied to the point where many people like yourself, judges, lawyers, and even a few well meaning people have been taken for a ride. And because the entire inJustice system is complicit with that corruption, not even truth or knowledge can stand against it.
We must now require citizens to get off their asses and do something other than to remain apathetic and consume their daily diets of reading about peoples lost rights in the papers...
and for fucks sake... click "reply to this" when you respond!
[ link to this | view in chronology ]
Re: Re:
The judge's argument is that the defendant doesn't have to open his mouth, just unlock the phone.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
The judge's argument is that the defendant doesn't have to open his mouth, just unlock the phone.
They have to communicate information to do this so your distinction is false.
[ link to this | view in chronology ]
Re: Re: Re: Re:
You really think I'm the judge? Ha, that's funny! Sorry to disappoint you, but I doubt the judge in this case is really going to come here to debate the likes of you.
[ link to this | view in chronology ]
Re: Re: Re:
A judge cannot order anyone to SAY or DO anything that may cause them to incriminate themselves.
Otherwise, judge could just force the defendant to not say, but WRITE that they are just guilty as fuck...
I mean they never SAID anything right? The fact that you cannot fathom the purpose of the 5th is insane by now.
[ link to this | view in chronology ]
Re: Re: Re: Re:
Why do you idiots keep thinking that I'm the judge?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
I disagree.
Being able to unlock the device demonstrates that the one doing so can, which means they can be linked to whatever the password was protecting.
The most incriminating evidence in existence doesn't do the prosecutors any good if they can't link it to the accused, and being able to provide the password creates that link by establishing that the accused had access to the evidence.
Taking the padlock example it would be more along the lines of 'Go get the key and then use it to unlock this safe', an act that both provides the contents and demonstrates that the one who is being ordered knew where the key was.
As always, this could be easily demonstrated by demanding a legally binding agreement of immunity for anything that the act of decryption provided, an agreement that would not be granted you can be sure, as it would undermine the entire purpose of demanding someone provide the password.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Can self'
[ link to this | view in chronology ]
Automatic self-erase files?
Apart from criminals, this ability might be useful for journalists bringing throw-away devices into dubious parts of the world.
[ link to this | view in chronology ]
Re: Automatic self-erase files?
[ link to this | view in chronology ]
"Your under arrest, you do not have to say anything.....
Be
"Your under arrest, you do not have to give us your passwords"
One set of laws for the 'real' world, a second set of laws for the 'technological' one, when the startling situational similarities between the real and the tech should have obvious to the law makers or anybody actually giving more then 2 seconds of thought on it......
What we see is, no limits on the technological laws, riding the coat tails of peoples lack of knowledge in whats intrusively capable of just the CURRENT technology.
You have laws being created for current technology with no restrictions, as a base, and a possible future of new technologies that may outshine their previous predecessors, in how much more intrusive they can be when abused........at the rate technology is going, ill probably be wishing for the good old fucked up days, when they treated people as their property using the internet as a gateway to steal, store and profile the lives of everysingly person regardles of inocence or guilt
[ link to this | view in chronology ]
first thing lets do...
i mean, in upside-down world, we mere nekkid apes exist to serve The State, richtig ? ? ?
oh wait, wasn't there a time in the distant past when we pwetended the opposite, as if that was the moral state of affairs ? ? ?
" Obviously, the government of the U.S. can NOT build a medieval rack and begin stretching the recalcitrant on it until they revealed the password."
yeah, locking a person up for years over such crap is in no way torturous... *snicker*
you do realize that the worst torture is no-touch torture, richtig, servant of the corrupted kourt ? ? ?
[ link to this | view in chronology ]
Re: first thing lets do...
You just described the basis of fascism.
[ link to this | view in chronology ]
The Fifth Amendment needs to be expanded and clarified.
It should not be legal for the state to compel any action to force a suspect to incriminate himself.
So long as we have this work-around the state will merely phrase their inquiries so that they are not subject to the Fifth Amendment exemption.
This won't stop fingerprints. At the time Apple released fingerprint scanning on their phones, we already a means to take a visual fingerprint and render a working artificial finger. (Using atypical fingers at atypical angles may still work as a hack, though.)
It is curious how law enforcement are not penalized for having turned off their body-cams, yet a suspect who permalocks a phone by trying too many times to unlock it will still be presumed guilty of intentional obstruction and contempt. Whether or not you are given benefit of doubt depends on whether or not you are a member of the gang.
So long as the enforcement and interpretation of law is inconsistent we will never have justice in the United States.
[ link to this | view in chronology ]
I wonder what happens with a trapped strongbox.
We don't think much about safes because there's a lot of good technology to cut through them. Some are trapped to lock down when drilling is detected, but who cares when you have a thermal lance handy.
But what if the alleged incriminating evidence is fragile (say, paper) and the safe is designed so that if an drill pierces the detection barrier (or some other intrusion countermeasure is triggered) it bathes its contents in acid or fire, say, activating a big ol' blob of Thermite.
Is this the same situation as the data block?
The San Bernadino iPhone?
[ link to this | view in chronology ]
A nation of child porn
How is it that any crime, no matter how odious or heinous, would be such that it alters the rights of a suspect including his right to due process?
I think this exemplifies this attitude we have that justice is served when a suspect is convicted, even by a plea deal, and even when he was denied a fair defense (by defunding our public defenders and stripping him of his assets -- both are common policies) and yet when suspect is acquitted, it is commonly assumed that he escaped justice on a technicality. Not that the court proved he was innocent, but that the court failed to administer justice.
And we will often try multiple suspects for the same crime, and if both are found guilty, both serve time.
This isn't justice. Justice is supposed to be impartial, and the failure of the legal system to remain impartial because it's a hot-button crime like child porn or terrorism is an indictment of the system.
In the 80s intra-office character assassinations were easy, since a middle manager or low executive accused by rumor-mill of sodomy or child sexual abuse would get quickly discharged. (Heh.) This is the same thing, but with a state-sanctioned legal system behind it.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
How does compelling him to provide a password reconcile with a "right to remain silent?"
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]