Taking the 5th Commandment on the grounds that I may discriminate myself

[CountDeMoney]

From the failing ArsTechnica--

Law & Disorder —
Man jailed indefinitely for refusing to decrypt hard drives loses appeal
"Our client has now been in custody for almost 18 months," defense attorney says.
David Kravets - 3/20/2017, 6:11 PM

On Monday, a US federal appeals court sided against a former Philadelphia police officer who has been in jail 17 months because he invoked his Fifth Amendment right against compelled self-incrimination. He had refused to comply with a court order commanding him to unlock two hard drives the authorities say contain child porn.

The 3-0 decision (PDF) by the 3rd US Circuit Court of Appeals means that the suspect, Francis Rawls, likely will remain jailed indefinitely or until the order (PDF) finding him in contempt of court is lifted or overturned. However, he still can comply with the order and unlock two FileVault encrypted drives connected to his Apple Mac Pro. Using a warrant, authorities seized those drives from his residence in 2015. While Rawls could get out from under the contempt order by unlocking those drives, doing so might expose him to other legal troubles.

In deciding against Rawls, the court of appeals found that the constitutional rights against being compelled to testify against oneself were not being breached. That's because the appeals court, like the police, agreed that the presence of child porn on his drives was a "foregone conclusion." The Fifth Amendment, at its most basic level, protects suspects from being forced to disclose incriminating evidence. In this instance, however, the authorities said they already know there's child porn on the drives, so Rawls' constitutional rights aren't compromised.

The Philadelphia-based appeals court ruled:

    Forensic examination also disclosed that Doe [Rawls] had downloaded thousands of files known by their "hash" values to be child pornography. The files, however, were not on the Mac Pro, but instead had been stored on the encrypted external hard drives. Accordingly, the files themselves could not be accessed.

The court also noted that the authorities "found [on the Mac Book Pro] one image depicting a pubescent girl in a sexually suggestive position and logs that suggested the user had visited groups with titles common in child exploitation." They also said the man's sister had "reported" that her brother showed her hundreds of pictures and videos of child pornography. All of this, according to the appeals court, meant that the lower court lawfully ordered Rawls to unlock the drives.

"The Magistrate Judge did not commit a clear or obvious error in his application of the foregone conclusion doctrine," the court ruled. "In this regard, the Magistrate Judge rested his decision rejecting the Fifth Amendment challenge on factual findings that are amply supported by the record."

The suspect's attorney, Federal Public Defender Keith Donoghue, was disappointed by the ruling.

"The fact remains that the government has not brought charges," Donoghue said in a telephone interview. "Our client has now been in custody for almost 18 months based on his assertion of his Fifth Amendment right against compelled self-incrimination."

A child-porn investigation focused on Rawls when the authorities were monitoring the online network, Freenet.

The decision from the appeals court comes as encryption is becoming more common on mobile phones and computers. What's more, encryption has seemingly become part of the national political discussion concerning whether governments should demand that companies bake backdoors into their encrypted products so that authorities can access content on encrypted devices.

The Supreme Court has never ruled on the forced decryption issue. A different federal appeals court, the 10th US Circuit Court of Appeals based in Denver, ruled in 2012 that a bank-fraud defendant must decrypt her laptop. The order wasn't enforced, however, as the authorities eventually accessed the laptop without her assistance.

The contempt-of-court order against Rawls was obtained by authorities citing the 1789 All Writs Act. The All Writs Act was the same law the Justice Department asserted in its legal battle with Apple, in which a magistrate judge ordered Apple to produce code to enable the FBI to decrypt the iPhone used by one of two shooters who killed 14 people at a San Bernardino County government building. The government dropped the case when authorities paid a reported $1 million for a hack.

"Unless the suspect unlocks the drives or a court unwinds the order, he will remain jailed," Marc Rumold, an Electronic Frontier Foundation staff attorney who filed a friend-of-the-court brief in the case, said in a telephone interview.

In that brief, the EFF said "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 authorities, however, said no testimony was needed from Rawls. Rather, they said, (PDF) "he can keep his passwords to himself" and "produce his computer and hard drives in an unencrypted state."

Link with links
https://arstechnica.com/tech-policy/2017/03/man-jailed-indefinitely-for-refusing-to-decrypt-hard-drives-loses-appeal/

[Berkut]

Huh, kind of torn on this one...

[Razgovory]

I don't think "Honor thy mother and father" is a good defense for child porn.

[viper37]

Huh, kind of torn on this one...

it's case like these that tests your limits...

Notwithstanding that it is a case about childporn, it seems a weird ruling.
The cops have all the proof they need, but to totally nail it, they need to see his decrypted drives.

Imho, it should be compared to a safe in your house.  Can you be compelled to open a safe in your house?  If yes, than the ruling is sound.  If not, than US citizen rights have not evolved to meet the digital age's challenges.

[Berkut]

I think it could be even simpler than that, at least from a precedence standpoint.

Can the state force you to decrypt a letter?

This seems no different. Has THAT been put before a court before?

[garbon]

I think it could be even simpler than that, at least from a precedence standpoint.

Can the state force you to decrypt a letter?

This seems no different. Has THAT been put before a court before?

I found this earlier:

http://blogs.denverpost.com/crime/2012/01/05/why-criminals-should-always-use-combination-safes/3343/

[Berkut]

Interesting garbon.

Of course, there is one key difference.

Assuming a warrant, the state could simply seize your combination safe and have one of their own experts open it. If necessary, they could physically destroy to locking mechanism, for example. That makes it practically a little easier for the courts to take the high road.

So it isn't as enlightening as we would like, since digital data could be potentially impossible to access if it encrypted, even if the state can physically take the drive in question.

[garbon]

Interesting garbon.

Of course, there is one key difference.

Assuming a warrant, the state could simply seize your combination safe and have one of their own experts open it. If necessary, they could physically destroy to locking mechanism, for example. That makes it practically a little easier for the courts to take the high road.

So it isn't as enlightening as we would like, since digital data could be potentially impossible to access if it encrypted, even if the state can physically take the drive in question.

That's fair. Does seem though that making you decrypt a drive does seem closer to 5th amendment protections too though.

In this particular instance, the part that has me lost is that they are using argument that it isn't incrimination because evidence already says he is guilty. If that's the case, what is so compelling about the police wanting to make the case airtight?

[Admiral Yi]

The weakness of the ruling IMO is what if they find on the encrypted hard drive evidence of crimes in addition to the one(s) already prosecuted?

[Berkut]

Interesting garbon.

Of course, there is one key difference.

Assuming a warrant, the state could simply seize your combination safe and have one of their own experts open it. If necessary, they could physically destroy to locking mechanism, for example. That makes it practically a little easier for the courts to take the high road.

So it isn't as enlightening as we would like, since digital data could be potentially impossible to access if it encrypted, even if the state can physically take the drive in question.

That's fair. Does seem though that making you decrypt a drive does seem closer to 5th amendment protections too though.

In this particular instance, the part that has me lost is that they are using argument that it isn't incrimination because evidence already says he is guilty. If that's the case, what is so compelling about the police wanting to make the case airtight?

I think, maybe it is the gap between incriminating evidence, and beyond a reasonable doubt proof?

I could see a jury being reluctant to convict on the basis of "Well, we saw traffic to his computer from pedo sites, but we cannot actually PROVE that he has child prove on his computer..." even if the evidence (the traffic to and from pedo sites) is incredibly incriminating?

Seems like a pretty fine distinction though...

[The Minsky Moment]

The Court in this case accepted the proposition that producing the unencrypted files would be testimonial and thus within the ambit of the 5th amendment privilege.  That's why the case was decided under the foregone conclusion doctrine.

I think its great that the EFF is making the case here, but doctrinally it doesn't quite fit.  The Court isn't directing that he reveal his passwords - just that he produce the documents in unecrypted form.  That is no different from any other case in which the government demands the production of documents the exact location or even existence of which it doesn't know.  In those cases - like this one - the production of the documents is considered a testimonial act, but subject to the foregone conclusion doctrine.

The lock distinction relates to another avenue for getting around the testimonial act of producing documents.  Let's say the government demands production of "all documents in the safe".  The problem is that responding to the request amounts to a testimonial admission that the documents exist and were the defendant's possession.  There are two ways around this problem.  Way number one is to demand the key to the safe.  That's just compelling production of physical material - it's not testimonial.  The government then opens the safe and the defendant isn't implicated in the act of production.  No violation.

But what if there is a combination and no key?  Then there is no physical object to demand.  The government has to fall back on demanding the documents themselves, thus implicating the act of production doctrine.  It would be the same if the government didn't know where the documents were and demanded "all documents concerning X in your possession custody or control". Again, a response is testimonial because it admits the existence and custody of the documents.  But in all these cases, the foregone conclusion doctrine is still available to get around the 5th amendment problem.  And that's what happened in this case.

[The Minsky Moment]

To try to simplify - using a combination lock safe doesn't really give you more protection under the 5th then just using a really good hiding place.  But using a lock and key may give less because if the government is sure the docs are in the safe they can get around the 5th amendment problem just by asking for the key.

[Berkut]

What if after all is said and done, the guy just forgets the password?

[Berkut]

Or even better, if he is clever, maybe he has a trap set that if someone enters a particular password, the drive immediately wipes itself, then provides access.

If they could prove he did that, could he be charged with a crime for giving them the trapped password?

[Razgovory]

obstruction of justice and destruction of evidence.  Still, better than a sex crime conviction.