You Are Hereby Ordered …

 

shutterstock_403591747Imagine you’ve been convicted of no crime — in fact, imagine you’ve not even been charged with a crime — but have been incarcerated for nearly seven months. This is the current situation of a former Philadelphia police sergeant who has been housed at a federal detention center for refusing to comply with a court order to divulge information which could be used to charge and convict him of possessing child pornography. During an investigation into users of a secure file sharing network, he became a person of interest, and a warrant was served on his residence to collect evidence to support the government’s suspicions. Authorities sized two encrypted hard drives during the search, but lack the ability to view their contents unless unlocked by a password. When the man evoked his 5th Amendment right against self-incrimination at a grand jury, the presiding judge ruled that he could not be compelled to provide the encryption passcodes for the drives. Failing to secure an indictment through the normal process, prosecutors turned to federal courts.

On the affidavit of Homeland Security agent (what DHS has to do with a local child porn case is beyond my ken) a warrant was issued by the federal court for a search of the hard drives. “After obtaining the warrant, the government made an application pursuant to the All Writs Act, 28 U.S.C. § 1651, for an order compelling Mr. Doe to ‘produce’ the drives ‘in an unencrypted state’ … Magistrate Judge Thomas J. Rueter so ordered.” Upon instruction from the judge, the man entered several passcodes that failed to unlock the devices. When ordered to explain his inability to successfully unlock the devices he refused, was held in contempt, and has been jailed since, without conviction and without charges being brought against him. The case is now on appeal to the 3rd U.S. Circuit Court of Appeals.

If some of this sounds familiar, it is because the FBI used the All Writs Act in an attempt to compel Apple to unlock the iPhone San Bernardino county had issued Syed Faroook before he murdered 14 of his co-workers in the name of the Islamic State. The difference here is the government is using the act in an attempt to compel a person of interest in a criminal investigation to provide information which could lead to his arrest and conviction of a very serious crime. It seems absolutely clear to me that using the All Writs Act in this manner is in direct violation of the 5th Amendment.

Has the government overreached in this? I’m no lawyer, but it seems overwhelmingly obvious to me that the prosecutors can’t simply lock a person up until he provides them enough evidence to get a conviction, especially when the person hasn’t even been charged with a crime.

Published in Domestic Policy, Law
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  1. Titus Techera Contributor
    Titus Techera
    @TitusTechera

    So that act is used routinely. Has been since the halcyon days of the Founding. It’s just how things work. Has a great name, too.

    But then there’s the rub–this business with keeping the guy under arrest for, possibly, years, for no reason that could be called a crime, judged by a jury of his peers, & legally found guilty & sentenced. That’s pretty impressive. American justice is once more even more impressive & more terrifying than I had previously thought.

    • #1
  2. BrentB67 Inactive
    BrentB67
    @BrentB67

    That is an amazing story and I don’t understand how they can hold him. Thanks for sharing.

    • #2
  3. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    Oh, but I thought Apple was a bad guy in their stand. How shocking a law is used for something other than its intended.

    • #3
  4. Klaatu Inactive
    Klaatu
    @Klaatu

    Bryan G. Stephens:Oh, but I thought Apple was a bad guy in their stand. How shocking a law is used for something other than its intended.

    Not sure I see the connection.  Unless your objection is the all writs act itself.

    • #4
  5. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    Klaatu:

    Bryan G. Stephens:Oh, but I thought Apple was a bad guy in their stand. How shocking a law is used for something other than its intended.

    Not sure I see the connection. Unless your objection is the all writs act itself.

    Any law, outside of common law, no matter how well intentioned, will be turned against the people.

    • #5
  6. Klaatu Inactive
    Klaatu
    @Klaatu

    Bryan G. Stephens:

    Klaatu:

    Bryan G. Stephens:Oh, but I thought Apple was a bad guy in their stand. How shocking a law is used for something other than its intended.

    Not sure I see the connection. Unless your objection is the all writs act itself.

    Any law, outside of common law, no matter how well intentioned, will be turned against the people.

    This law has been around since the first Congress.  It is not new.  What is new is the ability to hide electronic information with encryption law enforcement cannot break.  Change this situation to one in which the information is in a safe rather than on a hard drive.  Should the contents of the safe be shielded from examination under a valid warrant?

    • #6
  7. A-Squared Inactive
    A-Squared
    @ASquared

    Bryan G. Stephens:

    Klaatu:

    Bryan G. Stephens:Oh, but I thought Apple was a bad guy in their stand. How shocking a law is used for something other than its intended.

    Not sure I see the connection. Unless your objection is the all writs act itself.

    Any law, outside of common law, no matter how well intentioned, will be turned against the people.

    There is a fundamental difference. Apple did not have a 5th amendment right against self-incrimination.

    • #7
  8. Chris B Member
    Chris B
    @ChrisB

    A-Squared:

    Bryan G. Stephens:

    Klaatu:

    Bryan G. Stephens:Oh, but I thought Apple was a bad guy in their stand. How shocking a law is used for something other than its intended.

    Not sure I see the connection. Unless your objection is the all writs act itself.

    Any law, outside of common law, no matter how well intentioned, will be turned against the people.

    There is a fundamental difference. Apple did not have a 5th amendment right against self-incrimination.

    That’s right. The All Writs Act requires that the writs issued by the court be “agreeable to the usages and principles of law.”

    The law (5th Amendment) provides that “No person shall be . . . compelled in any criminal case to be a witness against himself”.

    There is no criminal charge against this individual at this time, and he is being ordered by a Writ of the court to provide testimony with which the court has explicitly stated will be used to indict him.

    The issuance of such a Writ is not “agreeable to the usages and principles of the law.”

    • #8
  9. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    Klaatu:

    Bryan G. Stephens:

    Klaatu:

    Bryan G. Stephens:Oh, but I thought Apple was a bad guy in their stand. How shocking a law is used for something other than its intended.

    Not sure I see the connection. Unless your objection is the all writs act itself.

    Any law, outside of common law, no matter how well intentioned, will be turned against the people.

    This law has been around since the first Congress. It is not new. What is new is the ability to hide electronic information with encryption law enforcement cannot break. Change this situation to one in which the information is in a safe rather than on a hard drive. Should the contents of the safe be shielded from examination under a valid warrant?

    I should not be jailed for refusing to give them the combination anymore than I have to tell them Where I hid the body.

    • #9
  10. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    A-Squared:

    Bryan G. Stephens:

    Klaatu:

    Bryan G. Stephens:Oh, but I thought Apple was a bad guy in their stand. How shocking a law is used for something other than its intended.

    Not sure I see the connection. Unless your objection is the all writs act itself.

    Any law, outside of common law, no matter how well intentioned, will be turned against the people.

    There is a fundamental difference. Apple did not have a 5th amendment right against self-incrimination.

    Standing against tyranny is a fundamental right.

    • #10
  11. A-Squared Inactive
    A-Squared
    @ASquared

    Bryan G. Stephens:

    Standing against tyranny is a fundamental right.

    Obstructing a lawful investigation is not.

    • #11
  12. Klaatu Inactive
    Klaatu
    @Klaatu

    Bryan G. Stephens:

    Klaatu:

    Bryan G. Stephens:

    Klaatu:

    Bryan G. Stephens:Oh, but I thought Apple was a bad guy in their stand. How shocking a law is used for something other than its intended.

    Not sure I see the connection. Unless your objection is the all writs act itself.

    Any law, outside of common law, no matter how well intentioned, will be turned against the people.

    This law has been around since the first Congress. It is not new. What is new is the ability to hide electronic information with encryption law enforcement cannot break. Change this situation to one in which the information is in a safe rather than on a hard drive. Should the contents of the safe be shielded from examination under a valid warrant?

    I should not be jailed for refusing to give them the combination anymore than I have to tell them Where I hid the body.

    But that did not apply to Apple.

    • #12
  13. Casey Inactive
    Casey
    @Casey

    Bryan G. Stephens: I should not be jailed for refusing to give them the combination anymore than I have to tell them Where I hid the body.

    We’ll find the body, kid. Don’t you worry about that.

    • #13
  14. Tom Meyer, Ed. Member
    Tom Meyer, Ed.
    @tommeyer

    Klaatu:

    Should the contents of the safe be shielded from examination under a valid warrant?

    I think that’s putting the shoe on the wrong foot. The question is whether the defendant is required to not only produce the database, but help the government execute its search of it.

    I would say no, citing, the Fifth Amendment (I don’t think the All Writs Act bears on the matter much).

    • #14
  15. A-Squared Inactive
    A-Squared
    @ASquared

    To extend the safe analogy, I think the safe owner should not be required to open the safe, but the manufacturer of the safe should be required to help open the safe if ordered by the court.

    • #15
  16. Klaatu Inactive
    Klaatu
    @Klaatu

    This situation raises a few interesting questions.  It seems rather obvious on first glance the man in question has a right not to incriminate himself, as Bryan says he cannot be compelled to tell authorities where the body is buried.  But the right against self incrimination has always been tempered by the ability of authorities to get evidence in other ways.  You can argue a suspect has no obligation to open the door for police when they come to his house to execute a search warrant but no one questions the ability of the police to kick the door in when he refuses to do so.  A suspect may not be obliged to provide the combination to his safe but the police can have the safe company or a locksmith open it.  Encryption presents a similar problem but without the easily recognized solution.

    • #16
  17. Klaatu Inactive
    Klaatu
    @Klaatu

    Tom Meyer, Ed.:

    Klaatu:

    Should the contents of the safe be shielded from examination under a valid warrant?

    I think that’s putting the shoe on the wrong foot. The question is whether the defendant is required to not only produce the database, but help the government execute its search of it.

    I would say no, citing, the Fifth Amendment (I don’t think the All Writs Act bears on the matter much).

    I think this case is substantively different from the Apple case and we should avoid confusing the two.  I a green this man has no obligation to help the authorities and he is wrongfully being held.  The issue we need to deal with is how we as a society deal with the situation where the suspect is within his rights to not open the door but authorities have no ability to kick it in.  The issuance of a warrant has always carried with it an ability to use force if necessary to execute it.

    • #17
  18. Lazy_Millennial Inactive
    Lazy_Millennial
    @LazyMillennial

    Klaatu:The issuance of a warrant has always carried with it an ability to use force if necessary to execute it.

    No, it hasn’t. A warrant gives the government agents the right to try. No guaranteed success.

    I’d compare the government’s position here to that of a man being ordered to translate his own writings that are in a language different than the government wants. Actually that’s exactly what’s happening here, since the hard drives have info encoded in a way that makes it gibberish without the password.

    This isn’t a “hard” legal issue. It’s just one where the government doesn’t get what it wants.

    • #18
  19. Tom Meyer, Ed. Member
    Tom Meyer, Ed.
    @tommeyer

    On second thought — lawyers, please chime in — I wonder if it was a mistake for the defendant to enter the passcodes. On the (likely) assumption that he did so with the intent of entering them incorrectly, I could see how doing it wrong could constitute contempt in a way that refusing at all would not.

    Again, not a lawyer.

    • #19
  20. Jamie Lockett Member
    Jamie Lockett
    @JamieLockett

    This seems like a fairly obvious violation of the 5th amendment.

    • #20
  21. Klaatu Inactive
    Klaatu
    @Klaatu

    Lazy_Millennial:

    Klaatu:The issuance of a warrant has always carried with it an ability to use force if necessary to execute it.

    No, it hasn’t. A warrant gives the government agents the right to try. No guaranteed success.

    I’d compare the government’s position here to that of a man being ordered to translate his own writings that are in a language different than the government wants. Actually that’s exactly what’s happening here, since the hard drives have info encoded in a way that makes it gibberish without the password.

    This isn’t a “hard” legal issue. It’s just one where the government doesn’t get what it wants.

    The ability to try includes the use of force.  No one is arguing there is any guarantee of success.

    I disagree.  We have a search warrant system for a reason and the ability to hide evidence of a crime in a safe that cannot be opened presents a difficult problem.

    • #21
  22. Umbra Fractus Inactive
    Umbra Fractus
    @UmbraFractus

    Tom Meyer, Ed.:On second thought — lawyers, please chime in — I wonder if it was a mistake for the defendant to enter the passcodes. On the (likely) assumption that he did so with the intent of entering them incorrectly, I could see how doing it wrong could constitute contempt in a way that refusing at all would not.

    Again, not a lawyer.

    Part devil’s advocate, part serious question, but wouldn’t entering the passcodes at all constitute him waiving his Fifth Amendment protections? Similar to Lois Lerner.

    • #22
  23. Hank Rhody Contributor
    Hank Rhody
    @HankRhody

    The Supreme court has held in the past that a man can not be compelled to give up the combination to a safe.

    I don’t see why this isn’t strictly analogous to that.

    • #23
  24. Jordan Inactive
    Jordan
    @Jordan

    A-Squared:

    Bryan G. Stephens:

    Standing against tyranny is a fundamental right.

    Obstructing a lawful investigation is not.

    Not helping isn’t obstruction.

    • #24
  25. skipsul Inactive
    skipsul
    @skipsul

    A-Squared:To extend the safe analogy, I think the safe owner should not be required to open the safe, but the manufacturer of the safe should be required to help open the safe if ordered by the court.

    Well, the analogy falls a little flat in the sense that the safe can be taken apart, with or without the safe manufacturer’s assistance (which I seriously doubt could actually be compelled).  In other words, in extremis, brute force will get the contents in the end.

    In the case of encrypted data, there is no means to extract the contents short of a similar brute-force method.  If the government has to use brute force on the safe, then they have to here as well.

    • #25
  26. skipsul Inactive
    skipsul
    @skipsul

    Umbra Fractus:

    Tom Meyer, Ed.:On second thought — lawyers, please chime in — I wonder if it was a mistake for the defendant to enter the passcodes. On the (likely) assumption that he did so with the intent of entering them incorrectly, I could see how doing it wrong could constitute contempt in a way that refusing at all would not.

    Again, not a lawyer.

    Part devil’s advocate, part serious question, but wouldn’t entering the passcodes at all constitute him waiving his Fifth Amendment protections? Similar to Lois Lerner.

    Depends on whether he could be deemed to have been compelled to do so under threat.  In any case, it looks like he lied about the passcodes.

    • #26
  27. Klaatu Inactive
    Klaatu
    @Klaatu

    skipsul:

    A-Squared:To extend the safe analogy, I think the safe owner should not be required to open the safe, but the manufacturer of the safe should be required to help open the safe if ordered by the court.

    Well, the analogy falls a little flat in the sense that the safe can be taken apart, with or without the safe manufacturer’s assistance (which I seriously doubt could actually be compelled). In other words, in extremis, brute force will get the contents in the end.

    In the case of encrypted data, there is no means to extract the contents short of a similar brute-force method. If the government has to use brute force on the safe, then they have to here as well.

    If I recall correctly, the Law Talk team mentioned safe companies can and have been compelled to open a safe under the All Writs Act.

    • #27
  28. Tom Meyer, Ed. Member
    Tom Meyer, Ed.
    @tommeyer

    skipsul:

    Umbra Fractus:

    Tom Meyer, Ed.:On second thought — lawyers, please chime in — I wonder if it was a mistake for the defendant to enter the passcodes. On the (likely) assumption that he did so with the intent of entering them incorrectly, I could see how doing it wrong could constitute contempt in a way that refusing at all would not.

    Again, not a lawyer.

    Part devil’s advocate, part serious question, but wouldn’t entering the passcodes at all constitute him waiving his Fifth Amendment protections? Similar to Lois Lerner.

    Depends on whether he could be deemed to have been compelled to do so under threat. In any case, it looks like he lied about the passcodes.

    That’s what I was getting at.

    • #28
  29. Jordan Inactive
    Jordan
    @Jordan

    Klaatu:

    skipsul:

    A-Squared:To extend the safe analogy, I think the safe owner should not be required to open the safe, but the manufacturer of the safe should be required to help open the safe if ordered by the court.

    Well, the analogy falls a little flat in the sense that the safe can be taken apart, with or without the safe manufacturer’s assistance (which I seriously doubt could actually be compelled). In other words, in extremis, brute force will get the contents in the end.

    In the case of encrypted data, there is no means to extract the contents short of a similar brute-force method. If the government has to use brute force on the safe, then they have to here as well.

    If I recall correctly, the Law Talk team mentioned safe companies can and have been compelled to open a safe under the All Writs Act.

    The thing with encryption, and where the analogy with safes breaks down, is that it’s actually possible to design unbreakable encryption where aid would be pointless, and even destroy the contents.

    • #29
  30. cdor Member
    cdor
    @cdor

    skipsul:

    Umbra Fractus:

    Tom Meyer, Ed.:On second thought — lawyers, please chime in — I wonder if it was a mistake for the defendant to enter the passcodes. On the (likely) assumption that he did so with the intent of entering them incorrectly, I could see how doing it wrong could constitute contempt in a way that refusing at all would not.

    Again, not a lawyer.

    Part devil’s advocate, part serious question, but wouldn’t entering the passcodes at all constitute him waiving his Fifth Amendment protections? Similar to Lois Lerner.

    Depends on whether he could be deemed to have been compelled to do so under threat. In any case, it looks like he lied about the passcodes.

    If he is like me, he probably forgot his own passwords. In any event, if he says he forgot them, how does one prove otherwise? But, back to the start, I do not believe the government has a right to incarcerate this man without a trial and conviction.

    • #30
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