Indiana Supreme Court Says Compelled Decryption Of Smartphones Violates The Fifth Amendment

from the maybe-some-federal-legislation-will-make-this-all-irrelevant dept

Two years ago, the Indiana state Appeals Court ruled residents could not be compelled to unlock devices by law enforcement -- not at the drop of a warrant. To compel the production of a password, law enforcement needs to have a certain amount of information in hand before it can ask courts to hit uncooperative criminal suspects with contempt charges.

The Appeals Court decision raised an interesting point about device encryption. Without decryption, the alleged criminal evidence is nothing more than a scramble of bits and bytes of no use to anyone. With the correct password in place, the data is reintegrated into something usable -- which turns the production of a password into a testimonial act.

In a very real sense, the files do not exist on the phone in any meaningful way until the passcode is entered and the files sought are decrypted. Thus, compelling Seo to unlock her phone goes far beyond the mere production of paper documents at issue in Fisher, Doe, or Hubbell. Because compelling Seo to unlock her phone compels her to literally recreate the information the State is seeking, we consider this recreation of digital information to be more testimonial in nature than the mere production of paper documents.

The state appealed the decision but there's nothing positive waiting for it at Indiana's top court. (via EPIC)

The state Supreme Court says compelling production of passwords violates the Fifth Amendment. The state wanted to rely on the "foregone conclusion" exception, but the court says [PDF] it doesn't have enough information on hand to start bypassing Constitutional protections.

[A] suspect surrendering an unlocked smartphone implicitly communicates, at a minimum, three things: (1) the suspect knows the password; (2) the files on the device exist; and (3) the suspect possessed those files. And, unless the State can show it already knows this information, the communicative aspects of the production fall within the Fifth Amendment’s protection. Otherwise, the suspect’s compelled act will communicate to the State information it did not previously know— precisely what the privilege against self-incrimination is designed to prevent.

The state doesn't have this information. In fact, an investigator admitted during testimony he was hoping to find evidence on the seized phone -- which definitely isn't the same thing as knowing what's contained in the device.

Even if we assume the State has shown that [Katelin] Seo knows the password to her smartphone, the State has failed to demonstrate that any particular files on the device exist or that she possessed those files. Detective Inglis simply confirmed that he would be fishing for “incriminating evidence” from the device. He believed Seo—to carry out the alleged crimes—was using an application or internet program to disguise her phone number. Yet, the detective’s own testimony confirms that he didn’t know which applications or files he was searching for:

"There are numerous, and there’s probably some that I’m not even aware of, numerous entities out there like Google Voice and Pinger and Text Now and Text Me, and I don’t know, I don’t have an all-encompassing list of them, however if I had the phone I could see which ones she had accessed through Google."

Compelling production of passwords without these conclusions in place is pretty much the equivalent of beating a confession out of a suspect. It forces someone to produce testimonial evidence to be used against them in court -- evidence still unknown to investigators.

In sum, law enforcement sought to compel Seo to unlock her iPhone so that it could then scour the device for incriminating information. And Seo’s act of producing her unlocked smartphone would provide the State with information that it does not already know.

The court goes on to explain why compelling phone passwords is not comparable to more analog versions of evidence gathering, much of which revolves around limited sets of paper documents targeted with subpoenas. The quantity of information the average smartphone contains makes these Constitutional protections even more crucial.

Smartphones are everywhere and contain everything. They have become such “a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Riley v. California, 573 U.S. 373, 385 (2014)...

Citing a prior compelled production case, the state court says this about the increasing irrelevance of analog comparisons.

Hubbell further illustrates the considerable difference between complying with a court order to produce an unlocked smartphone and complying with a documentary summons. Recall that, in Hubbell, the Government had not shown that it had any prior knowledge of either the existence or location of 13,120 pages of documents. Though not an insignificant amount of information, it pales in comparison to what can be stored on today’s smartphones. Indeed, the cheapest model of last year’s top-selling smartphone, with a capacity of 64 gigabytes of data, can hold over 4,000,000 pages of documents—more than 300 times the number of pages produced in Hubbell. It is no exaggeration to describe a smartphone’s passcode as “the proverbial ‘key to a man’s kingdom.’”

The court then goes further, suggesting the "foregone conclusion" doctrine may be completely unworkable when applied to smartphones.

Such unbridled access to potential evidence on her iPhone—or any smartphone—raises several complex questions. For example, if officers searching a suspect’s smartphone encounter an application or website protected by another password, will they need a separate motion to compel the suspect to unlock that application or website? And would the foregone conclusion exception apply to that act of production as well? Suppose law enforcement opens an application or website and the password populates automatically. Can officers legally access that information? Or what if a suspect has a cloud-storage service—like iCloud or Dropbox—installed on the device, which could contain hundreds of thousands of files. Can law enforcement look at those documents, even though this windfall would be equivalent to identifying the location of a locked storage facility that officers did not already know existed? Such complexity is neither necessary nor surprising: the foregone conclusion exception is, in this context, a low-tech peg in a cutting-edge hole.

The court says cops have other options -- options that don't bypass Constitutional protections.

At the same time, we emphasize that there are several ways law enforcement can procure evidence from smartphones without infringing on an individual’s Fifth Amendment rights. For example, officers could try to obtain information from third parties under the Stored Communications Act. Alternatively, two companies—Cellebrite and Grayshift—offer law enforcement agencies affordable products that provide access to a locked smartphone. Or officers could seek an order compelling the smartphone’s manufacturer to help bypass the lock screen. And if law enforcement wants to get into a smartphone for reasons other than prosecution, they can offer immunity to the device’s owner. But the State cannot fish for incriminating evidence by forcing Seo to give unfettered access to her iPhone when it has failed to show that any files on Seo’s smartphone exist or that she possessed those files.

This pretty much ends compelled encryption of smartphones in this state. The reasoning delivered here by the state's top court makes it almost impossible to satisfy the "foregone conclusion" standard needed to avoid violating the Fifth Amendment. Law enforcement agencies will have to seek other routes into locked devices. They'll no longer have the threat of indefinite jailing for contempt charges to hold over uncooperative suspects.

Filed Under: 5th amendment, compelled decryption, indiana, smartphones

Florida Appeals Court Says Producing Passwords Is Testimonial And Protected By The Fifth Amendment

from the A-CHALLENGER-APPEARS dept

The Florida State Appeals Court is bucking the trend on compelled decryption. While most courts have held forcing someone to relinquish the password to a locked device does not raise Fifth Amendment issues, this court has decided that act is testimonial in and of itself. This makes the state's demand unconstitutional and sends it up the ladder to the state's highest court. (via FourthAmendment.com)

The facts of the case may play a role in future deliberations. It involves a drunk driving accident. Phones belonging to the driver and passenger were were taken from the crashed car. The search of the driver's phone didn't go far, thanks to it being locked with a password. Prosecutors sought an order compelling password production but were met with arguments from the driver's lawyer claiming this would violate his Fifth Amendment rights. The appellate court agrees. From the decision [PDF]:

[R]evealing one’s password requires more than just a physical act; instead, it probes into the contents of an individual’s mind and therefore implicates the Fifth Amendment. The very act of revealing a password asserts a fact: that the defendant knows the password.

This is normally where the "foregone conclusion" standard is set -- the one that allows the government to bypass Fifth Amendment protections if it can show it knows the defendant knows the password to unlock a device. That's (usually) the only conclusion the government needs to reach. It does not need to show that it knows evidence needed to prosecute the case resides on the device. It only needs to tie the device to the defendant and show that there's a reasonable certainty the device can be unlocked by the person targeted by the order.

When applying this standard, courts usually don't consider production of passwords testimonial. And if it is, it's only verifying a fact the government has already shown it knows. Often, the government is forbidden to use this particular evidence -- that the defendant unlocked the phone -- against the person in court.

This court goes a different direction. It says, foregone conclusion or no, the production of passwords is testimonial and has the potential to harm the defendant just like any other Fifth Amendment violation would. The court notes the government gains nothing by obtaining a password. It wants what the password provides: access to information that might be used as evidence against the person supplying the password.

Here, the state seeks the phone passcode not because it wants the passcode itself, but because it wants to know what communications lie beyond the passcode wall. If the minor were to reveal this passcode, he would be engaging in a testimonial act utilizing the “contents of his mind” and demonstrating as a factual matter that he knows how to access the phone. As such, the compelled production of the phone passcode or the iTunes password here would be testimonial and covered by the Fifth Amendment.

Rather than use a standard used elsewhere, the court demands more from the government than a reasonable certainty the phone's owner knows how to unlock the phone. It needs to show the evidence it seeks can be found on the device.

Below and on appeal, the state’s argument has incorrectly focused on the passcode as the target of the foregone conclusion exception rather than the data shielded by the passcode, arguing that “because the State has established the existence of the passcode and iTunes password, evidence on the Petitioner’s cell phone, and that he can access the content of his phone,” the compelled search was acceptable. Similarly, the trial court specifically held that the “existence, custody, and authenticity of the passcodes are a foregone conclusion” in the order appealed. This holding, which focuses on the passcodes rather than the data behind the wall, misses the mark.

On this subject, we again disagree with the Second District. In Stahl, the court focused on the “reasonable particularity that the passcode exists,” a fact that the state had established. 206 So. 3d at 136 (emphasis in original). However, this is not the proper focus of the inquiry—it is not enough to know that a passcode wall exists, but rather, the state must demonstrate with reasonable particularity that what it is looking for is in fact located behind that wall. Contrary to the Stahl court’s conclusion, which the trial court adopted, the “evidence sought” in a password production case such as this is not the password itself; rather, it is the actual files or evidence on the locked phone. Without reasonable particularity as to the documents sought behind the passcode wall, the facts of this case “plainly fall outside” of the foregone conclusion exception and amount to a mere fishing expedition.

This is where the facts of the case may result in a ruling that aligns with the trial court's take on the "forgone conclusion" exception, but still denies access to the phone's contents. Everyone carries a phone. Drunk drivers are like sober drivers. That a drunk driver was carrying a phone at the time of an accident does not make it likely that evidence of the crime -- drunk driving -- will be found on the driver's phone. The court goes back to its "fishing expedition" comment, pointing out the state barely has any reason to search the phone at all, much less attempt to weaken Fifth Amendment protections in the process.

Here, the state’s subpoena fails to identify any specific file locations or even name particular files that it seeks from the encrypted, passcode-protected phone. Instead, it generally seeks essentially all communications, data, and images on the locked iPhone. The only possible indication that the state might be seeking anything more specific was the prosecutor’s statement at the hearing that the surviving passenger had been communicating with the minor via Snapchat and text message on the day of the accident and after the accident, a fact that the trial court briefly mentioned in its order but did not appear to rely on in reaching its conclusion.

The concurring opinion raises another issue seldom touched on in other password-related rulings. The "foregone conclusion" exception to the Fifth Amendment is, like the "good faith" exception, something fabricated by courts rather than by laws or Constitutional amendments. As such, it cannot be applied to oral testimony -- such as the relinquishment of passwords to law enforcement.

[H]ere, the State sought to compel the oral production of the requested information. The foregone conclusion exception has not been applied to oral testimony, and for good reason. In Fisher, the court explained that compelling a taxpayer to produce documents “involves substantial compulsion. But it does not compel oral testimony; nor would it ordinarily compel the taxpayer to restate, repeat, or affirm the truth of the contents of the documents sought.” Based on what the production in Fisher would not do, the Supreme Court allowed the government to compel the production of documents. Requiring the accused to orally communicate to the government information maintained only in his mind would certainly compel oral testimony. So, in my view, the basis for granting the petition is not that the State failed to satisfy the requirements of the foregone conclusion exception. Rather, the petition should be granted because the foregone conclusion exception is inapplicable to the compelled oral testimony sought in this case.

Of course, the workaround here is to have defendants punch in the passwords themselves or write them down. The latter would produce more issues than having them punch in the codes, but either way, it should be apparent -- at least in Florida -- that these alternate methods are being deployed to sidestep a precedential Fifth Amendment decision by the court.

The "foregone conclusion" exception is rarely applied in this fashion. A state-level appeals court decision isn't going to change things in the rest of the nation. But it does give defendants something to refer to when challenging compelled password production. And it also suggests the exception itself is being rethought in light of tech advancements that have made it possible for people to carry several houses-worth of documents with them at all times, protected only by a password the government can almost always obtain -- either through use of the exception or with indefinite jailing on contempt charges.

Fourth Amendment protections have undergone several adjustments over the past decade as courts seek to catch up with technology. The Fifth Amendment is due for the same overhaul.

Filed Under: 5th amendment, compelled decryption, encryption, florida, passwords, self incrimination

Massachusetts Supreme Court Looking To Define Where The Fifth Amendment Ends And Compelled Decryption Begins

from the let-a-new-wave-of-'wall-safe'-analogies-wash-over-this-land dept

Another case attempting to define the contours of the Fifth Amendment as it pertains to cellphones and passwords has arrived in the Massachusetts Supreme Judicial Court. The case involves sex trafficking allegations and a phone seized from the defendant at the time of his arrest. Testimony from a person who said she was trafficked suggested the phone seized belonged to the defendant Dennis Lee Jones. The state sought to compel Jones to unlock the seized phone, but this motion was denied by the trial court, resulting in the state's appeal.

While the lower court did express some concern that unlocking devices can result in the production of evidence to be used against the person unlocking it, the standard for compelled password production has nothing to do with the eventual recovery of evidence. All the state* needs to reach is a reasonable certainty the defendant knows the password to the seized device. This is called a "foregone conclusion" -- the defendant "telling" the state what it already "knows:" that the phone belongs to him and he can unlock it. The potential evidence held inside the phone may eventually be used against the defendant, but the Fifth Amendment question isn't about this evidence, but rather the simple act of producing a password, which isn't considered testimonial if the government can tie the phone to the accused.

*Yes, I realize Massachusetts is technically a commonwealth. There's no need to point this out in the comments.

In this case, it appears the state failed to meet that standard. The opinion being appealed says the government hasn't been able to conclusively show the phone belongs to Jones or that he knows the password. It may have shown evidence relevant to the case resides on the device, but that's not enough to move forward with compelled decryption.

In this case, the Commonwealth has established with reasonable particularity that information relevant to the charges against Mr. Jones exists on the LG Phone, and that it is authentic, satisfying two of the three elements of the “foregone conclusion” analysis. For example, the 7119 Number is linked to the LG Phone; online listings for alleged prostitution reference the 7119 Number; and police have possession of text messages from the 7119 Number related to commercial sex acts. In short, the Commonwealth has established independently that information connected to the charged sex trafficking activity is on the LG Phone.

The Commonwealth, however, has not demonstrated with reasonable particularity that Mr. Jones possesses the PIN number for the LG Phone or has access to what that phone contains.

[...]

The phone is not registered to Mr. Jones or to his address. A female voice (McNeill’s) answers voice calls to the 7119 Number. The Commonwealth has provided no evidence of Mr. Jones accessing or entering the PIN number into the LG Phone. The Commonwealth does not suggest that any law enforcement officer called the LG Phone and heard Mr. Jones answer the phone. In addition, Mr. Jones has not admitted to owning or controlling the phone. In short, the Commonwealth has offered no evidence akin to the strong evidence offered in Gelfgatt, where the defendant admitted to encrypting (and being able to decrypt) the computers at his home office.

The Commonwealth relies mainly on statements from Ms. Fortin, who lists the 7119 Number in her phone’s contact list as “Dennis,” and claims the 7119 Number belongs to Mr. Jones. I have not seen a statement from Ms. Fortin that shows she witnessed Mr. Jones using the LG Phone, nor did she describe the physical characteristics of the phone (such as model, color, or general appearance) in a way to suggest she has seen Mr. Jones physically use or enter a PIN into the phone. Defendant challenges Ms. Fortin’s credibility. The Commonwealth seems tacitly to acknowledge Ms. Fortin’s credibility issues, indicating in its search warrant affidavit that it seeks access to the contents of the LG Phone to “corroborate or fail to corroborate” the “key aspects of Ms. Fortin’s statement.”

Because it hasn't reached the "foregone conclusion" standard, the state's demand for a password makes this act testimonial.

In seeking to compel Mr. Jones to provide the PIN for the LG Phone, the Commonwealth is asking Mr. Jones to admit that he owns and/or controls the LG Phone, a fact the Commonwealth believes to be true, but does not know, and has been unable to establish independently.

Law prof Orin Kerr, who has written volumes on Fourth and Fifth Amendment issues, has filed an amicus brief [PDF] in this case. Citing his own draft paper [PDF] on the Fifth Amendment and compelled decryption, Kerr's argument mainly focuses on setting the confines of the "foregone conclusion" standard. His brief rejects both the stricter standard suggested by the defendant and lower standard asked for by the government. (h/t ReleasetheKraken)

The defendant argued for "proof beyond a reasonable doubt" he knew the password to the phone. But Kerr points out that's a standard for convictions, not accessing potential evidence.

Due process requires that the government must prove every element of a crime beyond a reasonable doubt because an individual’s freedom is at stake. Assigning such a high burden acts as “a prime instrument for reducing the risk of convictions resting on factual error.”

In contrast, “the basic purposes that lie behind the privilege against self-incrimination do not relate to protecting the innocent from conviction, but rather to preserving the integrity of a judicial system[.]” The individual must plead the Fifth and have a court assess the privilege before (often long before) any trial might occur. Although the individual must show that an answer would be incriminating, the individual may not even be a criminal suspect at that time. The Commonwealth could reasonably know only a small part of the evidence that it would later learn before deciding to bring a criminal case against the individual. For these reasons, the trial standard of proof beyond a reasonable doubt standard is not well-suited for the foregone conclusion doctrine.

According to Kerr, obtaining a password only ties the accused to the unlocked device. Whatever is on the phone may help the government prove its case, but it would not be able to use the suspect's compelled cooperation against him in court. It's not much of a protection, but it's something. It would prevent the government from making inferences about the phone's ownership and instead have to rely solely on the evidence found on the phone. The evidence must make the connection on its own without the government's help.

The government argued for a lower standard, one that would allow it to get its motion to compel granted. It wants a "preponderance of evidence" standard applied to "subsidiary facts." With this, the government could use the evidence provided by the victim to meet the standard needed to compel password production without having to prove on its own that Jones owned the phone it's seeking to unlock. Kerr rejects this as well, saying it introduces an evidentiary standard not needed when evidence is still being sought.

Identifying a standard for “subsidiary facts” arises when a trial court must determine what facts to consider to assess whether evidence is admissible at trial. But as explained above, Gelfgatt motions do not involve trial evidence. The only question is whether the Commonwealth can show by clear and convincing evidence that the subject of the order knows the passcode needed to unlock the device. There are no subsidiary facts to consider.

[...]

Adopting the Commonwealth’s preponderance standard for “subsidiary facts” would only water down the clear and convincing evidence standard. To see why, imagine a reliable informant previously told an officer that a criminal suspect regularly used one of two phones found in an abandoned car. But there’s a catch: The officer’s memory is hazy about which phone the informant identified. Based on the officer’s uncertain testimony, the trial court concludes that there is a 51% chance that the informant identified a particular phone as the one the suspect regularly used.

Now imagine the Commonwealth obtains a Gelfgatt order, the suspect pleads the Fifth, and the reviewing judge must determine if the Commonwealth has proven the suspect’s knowledge of that phone’s password by clear and convincing evidence. How should the court treat the officer’s uncertain testimony? Under the Commonwealth’s approach, the judge must treat as 100% certain that the informant identified that particular phone as the one regularly used by the suspect. Because the Commonwealth established the identification of that phone by a preponderance of the evidence, the judge would have to assume it as a true “subsidiary fact” and consider whether the identification showed by clear and convincing evidence that the suspect knew the phone’s password. That would make little sense.

Doubt about the existence of subsidiary facts should not be ignored simply because the existence of those facts is more likely than not.

Here's what Kerr believes the standard should be for compelled decryption:

A clear and convincing evidence standard strikes me as a fair approximation of a burden needed to eliminate that advantage. When the government can show by clear and convincing evidence that it already knows the facts implicit in the suspect’s testimonial acts, it is highly unlikely that the government will obtain any trial advantage from the testimony implicit in that act. The clear and convincing standard is sufficient to be confident that the government need not and will not rely on the testimonial act at trial to prove its case.

If that's the standard, it's unlikely the government has met it. It is lacking several establishing facts tying Jones to the phone seized from him during his arrest. If so, it cannot compel decryption.

The standard for compelled decryption is continually shifting. There's no on-point precedent from the US Supreme Court standardizing this across federal courts and every state has its own Constitution to consider as well during state-level prosecutions.

This will have to be taken up by the Supreme Court at some point, because producing passwords may not be technically testimonial if the government can meet the "foregone conclusion" standard, but it does lead to the production of evidence the government would have had access to otherwise. Analogies about wall safes and combinations only go so far when phones contain far more potential evidence than could possibly fit into a physical hole in the wall.

Then again, the Fifth Amendment only guards against self-incrimination. What's on locked devices may be incriminating, but unlocking a device only proves you can unlock it. If this element can't be used against a person in court, the government must still link evidence found to the criminal charges sought without drawing inferences from the compelled decryption itself. In many cases, this act won't prove essential to the government's case, even if the wealth of information unveiled ultimately helps secure a conviction.

Since the lines are still muddy, it may be in law enforcement's best interest to seek outside help cracking cellphones, rather than relying on something some courts may find testimonial, or otherwise determine the government hasn't met its burden to compel decryption. The future is going to filled with cases like these, and there's a good chance courts will need to spend more time discussing the implications of other security measures -- like fingerprints and facial recognition -- in terms of Fifth Amendment protections. For now, though, there's a poorly-defined standard making life more difficult for everyone involved in the judicial process to determine what can or can't be done without violating rights.

Filed Under: 5th amendment, compelled decryption, dennis lee jones, encryption, massachusetts, passwords

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.

Filed Under: 3rd circuit, compelled decryption, encryption, fifth amendment, francis rawls, passwords