Ricochet is the best place on the internet to discuss the issues of the day, either through commenting on posts or writing your own for our active and dynamic community in a fully moderated environment. In addition, the Ricochet Audio Network offers over 50 original podcasts with new episodes released every day.
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 important to remember that to be jailed for criminal contempt there is actually a sort of mini trial where the contempt must be proved beyond a reasonable doubt.
Could you say a bit more about this, Mr. Padula?
I believe this is civil contempt because it was not part of a criminal hearing.
Basically, there is a mini trial (though without a jury, as contempt is a common law prerogative of the judge) where the existence of the order and the failure to comply with it must be proven beyond a reasonable doubt and during which affirmative defenses may be presented.
edited to add that the lack of a jury is the main area of controversy regarding contempt within the legal profession.
Seems silly since the judge is basically the accuser as well. How often does a judge find no factual claim for his own accusation?
Like how NFL players can appeal Roger Goodell’s decisions…to Roger Goodell.
Washington DOT got spanked (and deservedly so) for combining all three branches of government into one agency concerning toll fines.
I’m unfamiliar with many instances of that happening. The single time I’ve personally seen it happen rested on an affirmative defense of impossibility. it was an order to produce documents which the charged party proved the documents had been destroyed by a third party without his knowledge.
I’ve read the brief of the incarcerated officer (“Doe”). The timeline is:
1: Local authorities sought to require Doe to disclose passcodes to the drives in a state grand jury proceeding.
2: Doe invoked his 5th Amendment privilege against self-incrimination and the state court judge ruled in his favor.
3: Federal authorities obtained an “All Writs Act” order from a federal Magistrate Judge requiring Doe to produce the drives unencrypted.
4: It appears that Doe did not assert his 5th Amendment privilege in response. Instead, he appeared at the DA’s office and entered numerous passcodes, which did not decrypt the drives. This may have been a waiver.
5: A federal District Judge ordered Doe to show cause for his failure or inability to decrypt the drives.
6: Doe declined to testify at the show cause hearing, presumably invoking his 5th Amendment privilege (Doe’s brief is not clear on whether he invoked the privilege).
7: The federal District Judge held Doe in contempt
for failure to testify(see correction below), and Doe was incarcerated.I’d like to see the prosecution’s appellate brief, which presumably hasn’t been filed yet, as Doe only filed his on Tuesday 4-26-2016. There may or not be a good waiver argument as to Doe’s 5th Amendment privilege. Generally, if you testify without asserting your 5th Amendment privilege, it is waived, and you can’t rely on it thereafter. Remember this from the IRS/Lois Lerner case.
I find it fascinating that one can be compelled to surrender a password but not the location of incriminating evidence. Can the defendant be compelled to reveal the location of digital information?
What if a decryption key is stored in an extremely obscured fashion on a computer? For instance some random bits on a hard drive or a website without a registered domain name. At some point the difference between a password and a location becomes completely arbitrary. What is the difference between an ipv6 address “fe84::36c7:e7ff:aeb3:668e” and “letmein” at the end of the day?
In #159 above, I originally wrote that the federal judge “held Doe in contempt for failure to testify.” I think that this is incorrect.
It is accurate to say that the judge “held Doe in contempt after he refused (or declined) to testify.” The reason was not necessarily the refusal to testify. The reason was probably the failure to comply with the original order requiring Doe to enter the passcodes. The “order to show cause” gave Doe a chance to justify that failure to comply, but if you don’t testify at the order to show cause hearing, it’s hard to justify your prior actions.
I’ve done a little digging re the law on the key 5th Amendment issue — whether a court can compel a person to enter a code to unlock or decrypt computer files.
The case law is very thin, so the issue is unsettled. For more information, you can follow this link to a Georgetown Law Journal Online article on the issue from earlier this year. This article lists just two appellate opinions and two trial court opinions on the issue. The 11th Circuit, a Michigan federal district court, and a Virginia state court answered no, you can’t compel a person to enter a code. The Massachusetts high court answered yes, you can.
The analysis rests on two SCOTUS cases from 1988 and 2000, making the following distinction in dictum: a court can compel a person to turn over the key to a strongbox containing incriminating documents, but cannot compel a person to reveal the combination to a safe. The distinction is that the first act is essentially physical, like compelling a blood or DNA sample, trying on a shirt or glove, or requiring a handwriting or voice exemplar. The second act is essentially testimonial, because it is compelling the person to give information.
[Continued]
[Continued]
I suspect that the prosecution in the Doe case discussed in the OP was trying to take advantage of this distinction by requiring Doe to enter the codes, rather than requiring him to tell them the codes.
The 1988 SCOTUS decision, which unfortunately is also called Doe, upheld a court order requiring a suspect to sign a consent form necessary for the release of records from a bank in Bermuda. This stands for the proposition that a suspect can be required to perform a physical act that will allow the prosecution to obtain documentary evidence of possible crime.
On the surface, this seems analogous to requiring the Doe discussed in the OP to enter the codes that would decrypt the hard drives at issue. He is not required to reveal the codes, which would be more on the testimonial side of the line.
On the other hand, the successful entry of a decrypt code would necessarily reveal the contents of the suspect’s mind — specifically, that he knew the code. This was not true of the release form in the 1988 SCOTUS case, which only provided deemed consented to release of bank records over which the suspect had authority, if any such records existed.
[Continued]
[Continued]
My prediction is that the appellate court in the Doe case, and ultimately SCOTUS, would hold that the 5th Amendment prohibits a court from compelling a person to enter the codes.
My next prediction is that the prosecution will be able to get around this restriction by granting immunity — i.e. essentially by agreeing that it may not use the fact that the suspect knew the codes against him, which would allow the prosecution to use any documents or photos discovered on the drives.
That is so perfectly logical and yet also infuriatingly twisted and petty that if Richard III had known about it, he’d have given those lawyers a reprieve -and everyone else would have thought they justified his earlier declaration.
Forgive me for a little detour of the thread’s main point. I very rarely comment on anything, but I do have a point here. As King Prawn can testify, the government can really go offline in the justice area. This is page 9, and I have had my pre-Shabbos ritual of crown royal :-), so I’ll let it fly.
In 1987, I was an EO in the Navy’s nuclear power program (shout out to as our illustrious editor, RO Jon Gabriel). This is all prior to the Patriot act, to give a little context. I got in a wee argument with my command about things that had happened to me, and being young, stupid, and very mad, I walked away from the job. This is not allowed, by the way. So my command told the FBI that I was a spy (mind you, this was at the time of the anonymous scandal).
So the FBI did a very interesting thing. They “detained me.” I was not arrested. I was never actually charged with anything. I got the Guantanamo treatment as an American citizen before that facility ever existed. They picked me up and threw me in the Federal prison system. They wouldn’t even tell my congressman were I was (he was one of the ranking members of the Armed Forces Committee). They did mail my shoes to me mother, saying “we have him.” They moved me to a new prison every other day, Sundays included. I spent time in every federal prison on the East Coast (with no access to any legal council). After 90 days, a federal judge finally called bull****, and ordered the FBI to release me. Which to their credit they did, and with an apology to boot. Which all this is to let you know, the federal government will do anything it wants to do, your rights be damned. It doesn’t matter who you are or what ideology you belong to. They really answer to no one (not even that judge, they told me that themselves). All this happened under Ronald Reagan. And now our President asserts his power to assassinate US citizens without due process and no one really blinks an eye. (By the way, he’s actually done that).
Just to let you know, AFTER this I have held a secret + clearance for over 30 years working for various agencies in the DOD. I have been shaping young minds at the US Naval Academy for the last 5 of them. Some national security threat indeed.
Dude. Awesome.
Seconding Sabr, wow.
Thanks to Sal and AP for the comments.
Why not write more about this? Sounds like a pretty shocking story! Glad you held up–what’re you doing now?
I gotta second the King Prawn on that one. That’s the most amazing story I’ve read in a long time.