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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
It is difficult because we have achieved a balance of sort with regard to the other situations (suspect won’t open door or safe) but we have not yet figured out a way to balance conflicting needs in this type of case.
No, it clearly is not, at least when it comes to contempt. Keep in mind, the defendant has two paths to freedom. One, is to purge himself of the contempt. (i.e. testify as to why he didn’t enter the right code.) or two, get a higher court to say his behavior is not punishable as contempt. He has chosen the second route. He may not have chosen wisely. If the Third Circuit says it is a valid use of the contempt power, and the Supremes don’t intervene, then he will sit in jail, indefinitely and quite constitutionally, until he purges himself of the contempt charge.
My understanding is that he did testify, stating that he has forgotten the codes. The judge did not believe him, and threw him in jail.
I disagree with that completely. The judge can order him arrested for contempt, at which point it is a criminal charge, just like any other criminal charge, with an arraignment, bail, etc. None of that has apparently happened, just a cycle of question, no answer, back to jail.
IMO this is judicial tyranny. The judge in question should be impeached.
No, contempt does not get to bypass the requirements of the constitution. Disguising it as “Well, once we have his confession, we won’t need to jail him indefinitely any longer” does not improve the situation.
Does jailing consumers actually have an appreciable effect to reduce the production of the pornography, or does it just give society the feeling that they are “doing something” and signaling disapproval?
My understanding of the steps so far are this:
For me this breaks down at the moment the prosecution starts jurisdiction shopping. The All Writs Act only grants authority to SCOTUS and courts created by Congress. I view both the order to act and the order to testify contrary to the 5th Amendment protections, All Writs Act be damned. No law can be used to override the rights detailed in the Constitution, and especially not just because the state really, really needs the law to do so.
This is an aside and one I actually agree with, even though child porn is tricky. It’s not like one can claim he didn’t know the material was illegal.
I do not know but I also have no problem with signaling disapproval.
Unless the refusnik is the very object of the lawful investigation. In that case, the 5th Amt says the government cannot compel self-incrimination.
Exactly. There are two competing goods here, and the 5th predetermines which one preempts the other.
It depends. I think when we imagine “child pornography” we’re thinking about a 12 year old, not a 17 year old. The 17 year old is just as illegal. Maybe he has a lot of porn on his hard drives and he’s afraid someone, anyone, might be below 18.
Indeed. And we start getting into the murky waters of consent where the ticking of a clock’s second hand can determine legality and illegality.
Me neither, but the signal might become so strong so that it’s actually an injustice to the perpetrator.
So I’m at the DMV and can’t give this the attention I’d like, but basically the same issue was raise on a post by Tom. My thoughts can be found there.
http://ricochet.com/building-a-digital-crowbar-questions-for-richard-epstein/comment-page-5/#comments
If the lawful investigation is an act of tyranny, it most certainly is.
Totally agree, and I’ve already said so in this thread.
The first comment quoted (comment #10) was a response to my statement in comment #7.
My point was, you have a fifth amendment right against self-incrimination, but other (non-spouses) are obligated by law to assist in an investigation.
Nope. Apple was being ordered to damage their own product. The Feds demanded uncompensated labor and damage to the security of Apple’s product, not just in this one case, but in all phones everywhere.
That is standing against tyranny. You, of course, can disagree.
I might add, that the personal phone was destroyed, and all that was left was the work phone. Ya think that just maybe he did not plot to kill people via his work phone?
One could construct a safe that destroyed its contents if tampered with. Same deal.
I’m a big believer in civil disobedience, but I am also a big believer in the idea that civil disobedience obligates you to serve time for the crimes you committed in engaging in civil disobedience.
Civil disobedience without punishment is just anarchy.
I’m not a fan of anarchy.
My understanding is the order applied only to the phone in question. I’m not sure unlocking the phone constitutes damaging it.
Should they have not searched his work desk either?
Knowing that the pictures are out there getting viewed does add to the trauma of the individual. Consuming the porn does, in that sense, add to the damage. There is not evidence that such consumption increases the acting out of individuals. In other words, there is not a need to “do something” to protect the community for that consumer of the porn, but they are contributing to a greater problem.
They wanted a piece of software to unlock the phone, and then said “Trust us, it won’t get out”.
Please. Every FBI review for every Federal employee got out because they put servers with that information on the internet.
It applied, in its technical fundamentals, to all phones.
Again I may be wrong but the order required Apple to unlock the phone, not provide the FBI with the means to do it.
I too am under the impression that we are not required to testify against ourselves. Perhaps this is another right that is being waived in the current abuse-the-citizen environment that the Democrats operate under?
Was Apple ordered to provide the FBI the ability to unlock the phone or simply unlock the phone?
I’m curious about this myself.
I believe the FBI asked for the former, and Apple argued it asked for the latter.
There may have been something in the “chain of custody” rules that actually or effectively required the latter (i.e., the FBI could not surrender possession of the phone).
They were ordered, by a judge, to provide the FBI with the means to unlock that particular phone, to which Apple replied that it could not do so without compromising every iPhone out there. The courts then ordered Apple to make such a universal tool, at its own expense.
This was, of course, after the FBI had locked itself out of the phone in the first place.
The order was to do one or the other. Apple could either just provide the ability or perform the action itself under FBI supervision.
This is wrong.
The FBI locked themselves out of the automatic backup, not the phone itself. Since the phone had not been backed up in over a month prior to the attacks it seems extremely unlikely that would have backed up automatically by merely placing it inside the perpetrator’s home (as Apple alleged) unless the perpetrator had not entered his home in the month before the attacks.