The Fifth Amendment Vs. Indefinite Jailing: Court Still No Closer To Deciding On Compelled Decryption

from the might-as-well-take-your-time,-as-it's-actually-someone-else's dept

We wrote about this case last April, and it appears very little has changed over the last 10 months. Francis Rawls, a former Philadelphia policeman, is still in jail because he has refused to decrypt his computer for prosecutors. At this point, Rawls has been jailed for sixteen months on contempt of court charges.

How long will Rawls stay jailed without a criminal conviction? The prosecution says that’s up to him. As for the appeals court, it apparently doesn’t feel a pressing need to address the unresolved issue: whether or not the Fifth Amendment protects citizens against being forced to turn over passwords.

The federal court system appears to be in no hurry to resolve an unresolved legal issue: does the Fifth Amendment protect the public from being forced to decrypt their digital belongings? Until this is answered, Rawls is likely to continue to languish behind bars. A federal appeals court heard oral arguments about Rawls’ plight last September. So far, there’s been no response from the US 3rd Circuit Court of Appeals, based in Philadelphia.

If Rawls’ devices had been secured with a fingerprint, there’s a good chance he’d already have been forced to unlock his devices. There haven’t been a lot of decisions pertaining to the use of fingerprints to decrypt devices, but those we have seen indicate judges don’t view the taking/application of suspects’ fingerprints to be “testimonial.” Unlocking a device that contains evidence to convict a person apparently doesn’t undermine their right to not be forced to testify against themselves. The reasoning in a recent appeals court decision was that a fingerprint is not something stored in a suspect’s mind. Therefore, it’s not testimony. It’s, for lack of better words, a bodily “fact,” like the blood stored in a suspect or a suspect’s resemblance to a person described by eyewitnesses.

Because Rawls is facing child pornography charges, there hasn’t been much public support for his legal battle. The problem with ignoring this one and waiting for a “better” case to roll around is that the weakening (or rewriting) of Constitutional protections almost always starts with the worst cases. Once precedent and/or legislation is in place, the diminished protections affect everyone — even those whose alleged actions are far less socially-abhorrent as the accused in this case.

The EFF, however, has stepped into the breach — as it has in other cases where child porn suspects are central to battles over Constitutional rights.

The Electronic Frontier Foundation told the court in a friend-of-the-court brief (PDF) that “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 other aspect of this case that bears watching is the All Writs Order the government has deployed to obtain this fingerprint. The All Writs Act of 1789 is seeing an uptick in deployment 200+ years after its passage. The government uses this any time it can’t find statutory authority for its demands. It’s a feature of the Act, not a bug, and its increased use suggests several other laws are badly in need of updating — and not just in the government’s favor. There are at least as many gaps in protections as there are gaps in authority in the laws governing digital data and communications, many of which were written long before the internet became the main means of public communication and storage capacity/prices allowed any person to store several lifetimes of information on devices small enough to stick in their pockets.

Filed Under: , , , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “The Fifth Amendment Vs. Indefinite Jailing: Court Still No Closer To Deciding On Compelled Decryption”

Subscribe: RSS Leave a comment
TimothyAWiseman (profile) says:

The court can probably compell

I have written about the topic of forced decryption for a legal journal. The very short version, is that under current interpretations they probably can compel a person to decrypt their harddrives under many (but not all) circumstances.

The all-writs act is not the best vehicle for this, but the foregone conclusion doctrine would allow it in a wide variety of cases. I also argue that this is probably the way it should be. There are times the Fifth Amendment would prevent compelled decryption, but if the prosecution can meet certain circumstances they probably should be able to compel decryption.

The article is available at:

Anonymous Coward says:

Re: The court can probably compell

The way I look at it is that a court usually will not compel you to open your safe or deposit box. So LEO gets a safe cracker to open it. Why is it any different for a computer?

Something unfortunate happens to lawmakers, judges, and people once you throw the phrase “with/on a computer” at a situation. I don’t see where being compelled to divulge a password (which is something you know vs. something you are)is any different than being compelled to testify against yourself.

I believe that it should not be easy to prosecute. I believe that LEO must work hard to prove a crime occurred, what occurred, and who was responsible. We did not have computers 100 years ago, yet convicting criminals occurred before they were invented.

Shortcuts in justice rarely result in better justice.

Anonymous Coward says:

Re: Re: The court can probably compell

“Shortcuts in justice rarely result in better justice.”

But they do results in more successful prosecutions…

This is a WIN for the Tough on Crime politicians and judges, and a WIN for their private run prison cronies!

What’s not to like? That is a literal WIN-WIN situation! /s

Anonymous Coward says:

Re: Re: The court can probably compell

“The way I look at it is that a court usually will not compel you to open your safe or deposit box. So LEO gets a safe cracker to open it. Why is it any different for a computer?”

I think it’s a matter of ability/effort. It’s easier to get a safe cracker than to issue a warrant/subpoena and a motion to compel and opposition to defendant’s motion to quash (or whatever it is they need to do) and then maybe the defendant refuses anyway and they still need the safe cracker. But with a sufficiently encrypted file, the government doesn’t have that ability to crack it. So compelling the defendant is the only way they can do it.

Anonymous Coward says:

Re: Re: Re:2 The court can probably compell

That’s the question to be answered though — is it to be considered a violation of the 5th amendment? The constitution was written a couple of centuries before the idea of a “password” was even a thing, and it was written with the assumption that you could forcibly extract any information or items that existed outside of a person’s mind.

Passwords kind of blur the line though. The password itself is certainly in a person’s mind but the information its protecting is NOT.

I personally would like to see passwords protected under the 5th as do probably most people not involved with law enforcement, but because passwords do span the realms of both mind and external, they’ll require some special handling and you can’t just dismiss the discussion out of hand.

Anonymous Coward says:

Re: The court can probably compell

From your document:

“Furthermore, as a matter of policy, showing [that the defendant has the ability to decrypt the files the government wants them to decrypt] by a preponderance of the evidence is sufficient.”

I’m not sure if that’s your conclusion or if you’re describing the current state of policy. But for me, it is unacceptable to have any policy where someone may be detained indefinitely on a mere preponderance of the evidence, as determined by a judge and not a jury. Because that’s what happens if someone can’t decrypt something the court orders them to decrypt. It’s a violation of due process and of the right to trial by jury, even if the courts don’t say so because it’s not in their interests.

Anonymous Coward says:

Re: Re: The court can probably compell

That statement is both my conclusion and the current state of policy accepted in most U.S. jurisdictions.

Indefinite detention though is a related but separate concept that I never addressed and do not currently have firm conclusions on (I certainly have thoughts, but my thoughts often change after I researched a topic thoroughly). It raises other constitutional questions that were beyond my original scope and also brings up the fact that people forget over time. Even if they absolutely knew how to decrypt it at the time of their confinement, they may not know how to do so 18 months later.

John says:

Re: Re: Re: The court can probably compell

The way I read that, is that you have considered the policy but not thought through the possible negative outcomes of implementing the policy. This sounds like academic BS. The only reason to consider a policy is how it will be implemented in the real world. This isn’t astrophysics where we can toss around theories on how the universe began. This is a persons life who could be detained indefinitely because the legal system is stuck in the stone age and can’t apply basic rights to protect an individual because the evidence is on a “computer”. I would be surprised that after 18 months in jail the former policeman and accused paedophile has sufficient functioning brain cells to remember his password.

TimothyAWiseman (profile) says:

Re: Re: Re:2 The court can probably compell

Its more that they are different questions. The question I addressed is: Can the government bring coercive power to bear to force someone to decrypt their own data at all? The answer is in some, but not all, cases yes.

The next question is what are the limits of the coercive power the government can bring to bear through civil contempt? That is a separate question that involves a completely unrelated constitutional analysis with virtually no overlap with the first question. It also affects many cases not involving decryption since people have been detained indefinitely for refusing to hand over assets for instance.

Obviously, the government of the U.S. can NOT build a medieval rack and begin stretching the recalcitrant on it until they revealed the password. Also, obviously if they have the ability to use coercive power at all under civil contempt they do have the ability to detain the individual for at least some time if they do not comply.

The question of how long they can detain that person is a different analysis that would would look more at the Eighth Amendment than the Fourth or Fifth.

As I said, I have my personal thoughts (I do not think it should be indefinite), but I have not yet done the analysis to bring forth a fully developed argument about where the exact line should be either morally or based on current jurisprudence.

Richard (profile) says:

Re: The court can probably compell

The court can no more compel than King Canute could hold back the tides.

WHat you are saying actually amounts to:

“The court can keep someone in prison indefinitely if they do not decrypt” , which is not the same thing at all.

Since it is entirely possible that a person in that situation might not be able to decrypt this is completely intolerable.

That One Guy (profile) says:

Re: The court can probably compell

I didn’t agree with that argument when I first ran across it, and I still don’t, and the ‘forgone conclusion doctrine’ is a pile of rot as far as I’m concerned.

The fifth prohibits forced self-incrimination, and forcing someone to decrypt someone is forcing them to provide evidence that will be used against them, even if that’s limited solely to the fact that they can unlock the device/account, and therefore can be tied to the contents of it.

(Something which can be easily demonstrated by the accused simply requesting a legally binding grant of immunity regarding anything found in exchange for decrypting the device. Any guess on how quick they’d be to reject that deal?)

As for the forgone conclusion doctrine if it’s actually a ‘forgone conclusion’ that they’ll get access to something then great, they can do it themselves. If they have to force someone else to provide the evidence then it’s pretty obviously not a ‘forgone conclusion’, as they didn’t have it, and couldn’t get it without compelling someone else to give it to them.

TimothyAWiseman (profile) says:

Re: Re: The court can probably compell

The legal question is not whether it is a foregone conclusion that the government will get access to something. As you say, if it were, the doctrine would at best be a cost saving measure for the government.

The question is closer to: Is it a foregone conclusion that the items in question exist in an ascertainable location that the person from which they are being demanded can readily access? The name of the doctrine (which has evolved slightly over the years) comes from a line in Fisher v. United states where the Court said “existence and locations of the papers are a foregone conclusion”

That One Guy (profile) says:

Re: Re: Re: The court can probably compell

That still strikes me as a ‘cost/time saving measure’, as well as a cheap dodge around the prohibition against self-incrimination.

‘We know X is there’ isn’t going to hold up in court I would think, whereas ‘The prosecution would like to submit X as Exhibit A’ is.

The first isn’t likely to be treated a legally admissible evidence, the second is, so while it may seem nit-picky it still strikes me as an important difference, and one that forced decryption makes the accused cross, if in no other way that someone decrypting a device and/or providing a password are, in that very act, providing evidence that can be used against them.

Anonymous Coward says:

Worth noting

To obtain release, the defendant must either decrypt the devices or prove that he cannot. The latter is a basic case of proving a negative. Thus, it is entirely possible that the defendant will remain indefinitely incarcerated even if he is innocent of the allegations, if he truly is unable to decrypt the seized devices. Even if he did once know the password, it is possible that he has now, or will at some point, forget enough of the password that the data is irretrievably lost.

I happened across an encrypted file of mine a few years ago that I had not touched in more than five years. I know what was in it when last I looked, but I cannot get into it anymore. I didn’t lose anything I still care about, but I’m very glad the government never alleged that container held incriminating evidence. If it had, I would be in the same situation this man is facing.

Anonymous Coward says:

Re: Worth noting

Imagine how effective this could be to used against people you/someone/some agency don’t like.
Step 1. Infect their computer
Step 2. Create a truecrypt volume, just a few gigabytes should be enough
Step 3. Have police kick down their door and confiscate the computer
Step 4. Watch them rot in jail for being unable to decrypt the volume, or prove they do not know the password

My_Name_Here says:

On the other side of the coin, it would be like compelling someone to open a locked door or to provide the key to a safe deposit box. Both are reasonable parts of executing a search warrant. You could even go further and say that the courts would have no problem requiring someone to provide the digital code to unlock a wall safe or such.

The argument that a phone may contain “personal” information is misleading and dishonest. Your home office may contain personal information as well, and that does not stop a search warrant from being executed. The size of the information potentially stored at a location does not change the warrant.

Ruling to protect the phone,tablet, or other device would create a special class of things that would not work like any other space, place, or personal item. It would create a protection that does not have any other parallel in the physical world.

Anonymous Coward says:

16 months in jail. 1st offense of possessing child porn in PA is 5 years. He is in jail for contempt, would he get credit for time served if he is convicted of possession of child porn? Of course, if he actually did the production of the porn, then it goes up to 10 years. Maybe he was actually filming and participating in the sex act? That would bring more. The government probably could get into the phone without his help, but since he is in jail, why would he bother? Maybe the guy is hopeful that one of his cop buddies will make the phone disappear out of the evidence locker? Good luck with that one.

Anonymous Coward says:

My conundrum....

“Francis Rawls, a former Philadelphia policeman, is still in jail because he has refused to decrypt his computer for prosecutors.”

Them being a police officer I feel compelled to not give a flying fucking shit about their predicament.

As someone who deeply cares about the Constitution, this is a travesty of justice and the typical bullshit no one gives a fuck about. But I sure do notice a lot of people protesting other shit.

And on all writs…
“It’s a feature of the Act, not a bug,” ahem…

“issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”

So it is pretty clear that this is not in keeping with the usages and principles of the law… but this is TD, I don’t expect you get any of this… after all, so very few others get it either.

Priorities… amiright?

Innocent people are in jail and a whole lot of fuckwitts care more about Trumps hairdo and his diarrhea of the mouth twitter spewing.

Anonymous Coward says:

Re: Re: Re:2 My conundrum....

Seriously, if you have not figured it out already, there is nothing I can say or do to inform you.

In order to understand or learn what I am saying, you have several other things to learn and understand FIRST. Perhaps a little googling, yahooing, duckduckgoing, msning, or binglalinging would be in order here.

Go and search about things like the innocence project and the news stories about a few of these things.

And in this case, officer has not been proven guilty yet, and the judge is burdening the defendant with and unconstitutional court order. He is simply in jail because a Judge has the power to break the law and get the fuck away with it!

Anonymous Coward says:

Re: Re: Re:2 My conundrum....

Who is the innocent person you speak of?

"Presumed innocent until proven guilty" should ring a bell. Now, I do understand that this phrase is no where in the Constitution or Bill of Rights, but it is common law.

Yes, I know it is a former police officer. Yes, I am aware that a number do violate the law. The point and issue here is prove it.

Also, child porn is one of those interesting (in a bad way) crimes: If someone spams me with child porn, I am a felon. If I delete it, I am a felon twice over. This isn’t a hypothetical, it has happened to others in the past.

Moreover, one can be convicted of child porn for nothing more than a cartoon depicting the act. No children involved at all.

I don’t like child porn, I don’t think it should not be illegal. I do think the law is overbroad and over prosecuted. After all, what elected prosecutor or judge want’s their opponent to be able to throw the term "Soft on child porn!" at them?

The real solution, as is too often the case, is for voters to stop being entirely emotional in their policy choices and start applying some IQ to it. Unfortunately, while something can be done about being uneducated, as Ron White says, "You can’t fix stupid."

Anonymous Anonymous Coward (profile) says:

Re: Re: My conundrum....

Amendment 4 – Search and Seizure

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

"…you can be held in contempt of court and jailed until you comply with the legal court order."

The problem is that the legality of the court order flies in the face of the Fourth Amendment, except that it is on a computer. Which is a damned tiny excuse to except the Fourth.

Anonymous Coward says:

Re: Re:

“Just because you disagree with case law doesn’t mean it is unconstitutional.”

You are right, but what is going on here is clearly unconstitutional. There is no shortage of examples where judges, police, politicians, and people just assume that because a computer or technology is involved there CAN be a different set of rules applied. The 4th and 5th are DAMN clear… only fool or someone looking to pollute the Constitution see otherwise because the Founding fathers are quite extensively ON RECORD about what each of the constitutional amendments mean.

The conundrum is caring about a dirty cops plight and being a well versed constitutional wizard and remembering that even assfucks must have rights or the innocent lose theirs too!

Anonymous Coward says:

“a judge or a grand jury may be able to force you to decrypt your devices in some circumstances. Because this is a legally complicated issue, if you find yourself in a situation where the police, a judge or grand jury are demanding you turn over encryption keys or passwords, you should let EFF know right away and seek legal help.”

This is from the eff website. It is not as cut and dried as you think it is. Do you know the specifics of this case? Does the judge have specific knowledge of what is on the phone? Maybe this guy should call the eff, but since he has been in jail for 16 months, I am pretty sure that he knows that he wouldn’t win.

Anonymous Coward says:

Re: Re:

“This is from the eff website. It is not as cut and dried as you think it is.”

The EFF has a reputation to maintain, therefore they have to play by their “corrupt” rules to “remain relevant”. If anyone comes off as a True supporter of the constitution you can quickly find out how fast they can become marginalized. They will find it difficult to file amicas curie (friends of the court) and be disregarded.

This is very cut and dried. The moment someone is completed to open their mouth to do ANYTHING, is the moment their 5th Amendment rights have been trampled. It is then up to law enforcement to do the footwork to “acquire” the passwords or keys under their own power and of course by warrant.

A judge cannot use allwrits to overcome constitutional rights. The waters of Constitutional understanding have been extensively muddied to the point where many people like yourself, judges, lawyers, and even a few well meaning people have been taken for a ride. And because the entire inJustice system is complicit with that corruption, not even truth or knowledge can stand against it.

We must now require citizens to get off their asses and do something other than to remain apathetic and consume their daily diets of reading about peoples lost rights in the papers…

and for fucks sake… click “reply to this” when you respond!

Anonymous Coward says:

Re: Re: Re: Re:

that “to” should have been a do… sorry about that.

A judge cannot order anyone to SAY or DO anything that may cause them to incriminate themselves.

Otherwise, judge could just force the defendant to not say, but WRITE that they are just guilty as fuck…

I mean they never SAID anything right? The fact that you cannot fathom the purpose of the 5th is insane by now.

That One Guy (profile) says:

Re: Re:

I disagree.

Being able to unlock the device demonstrates that the one doing so can, which means they can be linked to whatever the password was protecting.

The most incriminating evidence in existence doesn’t do the prosecutors any good if they can’t link it to the accused, and being able to provide the password creates that link by establishing that the accused had access to the evidence.

Taking the padlock example it would be more along the lines of ‘Go get the key and then use it to unlock this safe’, an act that both provides the contents and demonstrates that the one who is being ordered knew where the key was.

As always, this could be easily demonstrated by demanding a legally binding agreement of immunity for anything that the act of decryption provided, an agreement that would not be granted you can be sure, as it would undermine the entire purpose of demanding someone provide the password.

Anonymous Coward says:

In some cases, a court can compel a reporter to give up their sources. If the reporter refuses, they can be jailed. At that point, it becomes a test of wills in terms of how long the reporter stays in jail. Who will break first, the court system or the reporter. It becomes a public relations issue, not the law. The reporter could spend the rest of his life in jail.

Anonymous Coward says:

I just realised something, should’nt the technological equivilant of

“Your under arrest, you do not have to say anything…..


“Your under arrest, you do not have to give us your passwords”

One set of laws for the ‘real’ world, a second set of laws for the ‘technological’ one, when the startling situational similarities between the real and the tech should have obvious to the law makers or anybody actually giving more then 2 seconds of thought on it……
What we see is, no limits on the technological laws, riding the coat tails of peoples lack of knowledge in whats intrusively capable of just the CURRENT technology.

You have laws being created for current technology with no restrictions, as a base, and a possible future of new technologies that may outshine their previous predecessors, in how much more intrusive they can be when abused…… the rate technology is going, ill probably be wishing for the good old fucked up days, when they treated people as their property using the internet as a gateway to steal, store and profile the lives of everysingly person regardles of inocence or guilt

art guerrilla (profile) says:

first thing lets do...

…argue away all rights so The State is not inconvenienced, ’cause The State is the be-all and end-all of our existence, richtig ? ? ?
i mean, in upside-down world, we mere nekkid apes exist to serve The State, richtig ? ? ?
oh wait, wasn’t there a time in the distant past when we pwetended the opposite, as if that was the moral state of affairs ? ? ?
” Obviously, the government of the U.S. can NOT build a medieval rack and begin stretching the recalcitrant on it until they revealed the password.”
yeah, locking a person up for years over such crap is in no way torturous… *snicker*
you do realize that the worst torture is no-touch torture, richtig, servant of the corrupted kourt ? ? ?

Uriel-238 (profile) says:

The Fifth Amendment needs to be expanded and clarified.

It should not be legal for the state to compel any action to force a suspect to incriminate himself.

So long as we have this work-around the state will merely phrase their inquiries so that they are not subject to the Fifth Amendment exemption.

This won’t stop fingerprints. At the time Apple released fingerprint scanning on their phones, we already a means to take a visual fingerprint and render a working artificial finger. (Using atypical fingers at atypical angles may still work as a hack, though.)

It is curious how law enforcement are not penalized for having turned off their body-cams, yet a suspect who permalocks a phone by trying too many times to unlock it will still be presumed guilty of intentional obstruction and contempt. Whether or not you are given benefit of doubt depends on whether or not you are a member of the gang.

So long as the enforcement and interpretation of law is inconsistent we will never have justice in the United States.

Uriel-238 (profile) says:

I wonder what happens with a trapped strongbox.

We don’t think much about safes because there’s a lot of good technology to cut through them. Some are trapped to lock down when drilling is detected, but who cares when you have a thermal lance handy.

But what if the alleged incriminating evidence is fragile (say, paper) and the safe is designed so that if an drill pierces the detection barrier (or some other intrusion countermeasure is triggered) it bathes its contents in acid or fire, say, activating a big ol’ blob of Thermite.

Is this the same situation as the data block?

The San Bernadino iPhone?

Uriel-238 (profile) says:

A nation of child porn

How is it that any crime, no matter how odious or heinous, would be such that it alters the rights of a suspect including his right to due process?

I think this exemplifies this attitude we have that justice is served when a suspect is convicted, even by a plea deal, and even when he was denied a fair defense (by defunding our public defenders and stripping him of his assets — both are common policies) and yet when suspect is acquitted, it is commonly assumed that he escaped justice on a technicality. Not that the court proved he was innocent, but that the court failed to administer justice.

And we will often try multiple suspects for the same crime, and if both are found guilty, both serve time.

This isn’t justice. Justice is supposed to be impartial, and the failure of the legal system to remain impartial because it’s a hot-button crime like child porn or terrorism is an indictment of the system.

In the 80s intra-office character assassinations were easy, since a middle manager or low executive accused by rumor-mill of sodomy or child sexual abuse would get quickly discharged. (Heh.) This is the same thing, but with a state-sanctioned legal system behind it.

someoneinnorthms (profile) says:

Once again I have not read all the comments, so this may have been addressed. If one has a password and gives it up (whether by force or voluntarily) that is PROOF that one had dominion and control over the computer and its contents. “Dominion and control” is an element of “possession” in my jurisdiction. Thus, by providing the password, one is basically admitting an element of the crime. How is that NOT testimonial?

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...