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You Are Hereby Ordered …
Imagine 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
Well, whom would you compel in this case? Likely the encryption is one of many open-source forms out there, so the algorithms are already published and well understood. In the end, then, this still comes back to demanding info for self incrimination.
Don’t you lose your 5 th amendment protection if you answer any questions?
If that’s correct it would seem a pretty strong argument in this case.
That is why I believe it is a difficult issue.
A man is jailed indefinitely for refusing to provide access to a computer that may or may not hold the evidence that prosecutors would need to charge him for a crime that may or may not have occurred.
Outrageous.
Why is this not a cause celebre?
Like cdor, I don’t see how the judge can justifiably hold him in contempt without proof that he didn’t simply forget his password. What are the standards for contempt? I wluld not be surprised if they favor judges.
Agreed that a case involving a foreign language or non-digital encryption (there must be such cases from wartime) would be more relevant than a safe. I’m inclined to agree that the 5th Amendment protects him, but also suspect that he waived that right by attempting to enter a password.
Perhaps an equally relevant question: How many of us have lost so much faith in our investigative and judicial systems that we can easily imagine that the prosecutors and judge don’t care about legal restraints?
The facts surrounding Defendant’s attempts to enter pass codes which prove incorrect aren’t clear to me. I do remember some case law about being jailed for contempt, though. A party, or even a witness, can be jailed for non- disclosure even when no crime is involved , as long as she “holds the key to his jail cell in his own hand” meaning all he has to do to get out is obey the court’s order, which he is willfully refusing to do.
But, two things:
First the good news about our justice system: we have a right to bail, established by case law penumbral to the 8th amendment. Please look up the French prison in the heart of Paris (closed only recently) ironically named La Santé. Accused persons spent an average of four months in there awaiting trial, in worse-than-medieval conditions.
And the bad news in my humble opinion: that we put people in prison for just looking at pictures. I don’t care WHAT pictures, although I recognize that child porn is the least appealing instance. I think I remember from law school ( and admittedly, criminal law hasn’t been my field of practice) that for criminal liability, there has to be some actual step, some action, however slight, in the direction of committing a crime. Whatever bad, destructive, seditious, perverse thing you’re thinking–or saying or writing–cannot be the subject of criminal prosecution unless you act on it or start at least preparing to act on it.
Unless and until this Defendant inappropriately fondles some little relative or tries to arrange to meet a 12 yr old online, he shouldn’t even be under investigation.
Other examples of criminalizing thought: “hate crime”. If you kill someone, assault someone, destroy someone else’s property, those things are ALREADY against the law and those actions carry criminal penalties. When you start punishing the perp more severely just because of what he was THINKING, you are punishing pure thought. (I’m pretty sure it used to be a tenet of crim law that the prosecution does not have to prove motive, only that the perp did the crime, who knows or cares why.)
Does anything other than active cooperation count as obstruction?
I fundamentally disagree with the idea that the government can compel a third party to work on the their behalf.
I’m sure some criminal lawyers can provide additional clarity, but to me, refusing to obey a lawful order to help police or refusing to give a statement under oath (when you or your spouse was not involved in the crime) is obstruction of justice.
Not volunteering a statement is not obstruction, but refusing to cooperate is.
According to his lawyer this is why he was held in contempt:
So it is his refusal to testify against himself about why he cannot satisfactorily comply with the order (either intentionally or because he just can’t) for which he is jailed. He is imprisoned for not testifying rather than for not correctly entering the passcodes.
One of the problems I think is that the case involves alleged child pornography. Just the hint of that will tilt the court of public opinion.
What main stream reporter or media outlet wants to do the in depth story on this case, he is freed, and then somehow, somewhere down the road it turns out to be true.
I think it is egregious that he is being held like this, but not sure who you get to put up the funds for a real attorney or do some expose on the matter.
Here we must disagree. The recipient of child pornography is part of an enterprise that exploits and causes real harm to children. We not only have the right but the obligation to protect children.
By looking at child porn you’re supporting those who produce it, and thus are complicit in the crime.
And on top of this, I don’t think it is acceptable to hold a person in prison indefinitely without charging them with any crime.
I am sorry. If you can’t understand the need to criminalize the consumption of child pornography then I am at a loss. Child pornography requires an unconscionable crime to be committed before someone consumes it.
Reason magazine-
Something something habeas corpus?
Completely agree. Child porn requires pretty awful damage to children in order to produce it. I have no problem with criminalizing the mere possession of it. (I do have a problem with the Traci Lords case, but that is the exception that proves the rule.)
I don’t listen to death metal.
Ok, Soto, take a victory lap. You’ve earned it. I’ll be here wondering how to feel about being upstaged. I might call the cops on you later-
The thing to keep in mind in this situation is that, at the moment the defendant is not in jail for child porn. He is in jail for failing to obey a lawful court order. There is no question that the court had the right to issue the order. The defendant’s relief is thru appeal of the contempt citation, which he is apparently doing.
Now here is an interesting question. What if, by entering the wrong passcodes, the defendant wiped the encrypted hard drive? Maybe that is why he tried to enter the code rather than simply refusing to do so.
He appears to be in jail for refusing to testify as to why he couldn’t enter the correct passcode. Since the 5th amendment is clearly still a thing, I find this unacceptable.
Even if you grant that he should be punished in some manner for his obstruction of justice, then he should be charged with a crime. Holding him indefinitely is clearly unconstitutional.
It would be interesting to see the actual warrant.
His sister’s statement was interesting and one would have to wonder what the Pennsylvania prosecutors saw on Freenet that led to the issuing of a warrant. The forensic examiner’s statement needs to be clarified.
My guess is that this is specifically why they aren’t charging him. If this actually got in front of a judge the state may not get their preferred outcome.
Again we disagree. Like papers written in code, this isn’t a difficult problem, just one where the government doesn’t get what it wants. The government gets a warrant to try to investigate, but they can’t force the defendant to help them. Your whole “difficult problem” is a case where the government’s “trying” can’t open a safe, aka where their success isn’t guaranteed.
While I don’t like the spirit of it, it’s pretty clear that the government has this right in a few narrow areas. Specifically, the Constitution requires third parties (citizens) to assist the government in war (the draft), in financing the government’s functioning (taxes), and in administering justice (jury duty implied in right to trial by jury). Extending this right to forcing safe-makers to open specific safes might be a “bridge too far” for you, but it’s been on the books for a while now.
I haven’t faced this issue in my work as a prosecutor, but requiring him to divulge his password seems like a straight forward violation of the suspect’s 5th Amendment rights. Wouldn’t the fact that the suspect had the password be used as evidence to prove that whatever is found on the computer was possessed by him? If a suspect invokes his 5th Amendment right to remain silent, the police can’t get around that by telling him to type or write information.
I never had such faith.
The reason we need legal/formal restraints on law enforcement and prosecutors is that they are people, just as flawed as the rest of us.
I have no doubt that the judge and prosecutor are acting with pure motives. They are, however, doing wrong.