Appeals Court Rules That People Can't Be Locked Up Indefinitely For Refusing To Decrypt Devices

from the all-writs-v.-5th-amendment-v.-throwing-away-the-key dept

The Third Circuit Court of Appeals has finally decided -- after more than four years -- that the government can't keep someone locked up indefinitely for contempt of court charges.

Former Philadelphia policeman Francis Rawls has been locked up since 2015 for refusing to decrypt external hard drives the government claims contain child porn images. The government's claims are based on Rawls' sister's statements. She said Rawls showed her "hundreds" of child porn images that were located on these drives.

The government obtained an All Writs Order demanding Rawls decrypt the devices. This was challenged by Rawls, but unfortunately he did not preserve a Fifth Amendment challenge, so the Appeals Court let the government have its victory. It was a limited victory. It still had two locked drives Rawls claimed he could not remember the passwords for. But it also had Rawls jailed on civil contempt charges.

Rawls will be a free man again, but probably not for long. He challenged the indefinite incarceration, asserting that the law only provides for a maximum of 18 months in jail for civil contempt charges. The court [PDF] agrees:

On September 30, 2015, Rawls was incarcerated for civil contempt after he failed to comply with a court order that he produce several of his seized devices in a fully unencrypted state. Since that day, more than four years ago, Rawls has been held in federal custody. Rawls seeks release arguing that 28 U.S.C. § 1826 limits his maximum permissible confinement for civil contempt to 18 months.

Because we conclude § 1826 applies to Rawls, we will reverse the order of the District Court and order Rawls’ release.

The government argued this statute does not apply to Rawls, since he is the one charged with crimes, rather than a witness to a crime, as 1826(a) states:

Whenever a witness in any proceeding before or ancillary to any court or grand jury of the United States refuses without just cause shown to comply with an order of the court to testify or provide other information, including any book, paper, document, record, recording or other material, the court, upon such refusal, or when such refusal is duly brought to its attention, may summarily order his confinement at a suitable place until such time as the witness is willing to give such testimony or provide such information.

Rawls pointed out he is a witness in this case. The government wants him to give up passwords to hard drives likely containing evidence to be used against him. That makes him both a witness and a criminal suspect. Production of these passwords would be testimonial -- information Rawls may know (the passwords) that the government does not. The simple act of producing passwords is itself testimonial. It allows the government to infer Rawls had control of the drives and knowledge of their contents.

The precedent the government relies on here isn't on point:

There is a significant difference between a contempt confinement for failure to provide information and confinement for failure to stop actively harassing court personnel. Unlike the contemnor in Harris, Rawls is being asked to provide information in a proceeding and is therefore a witness under § 1826(a).

Furthermore, as the concurring opinion points out, the government's insistence these hard drives be unlocked and that Rawls remained jailed until they are, appears to be completely redundant and unnecessarily cruel.

[B]ased on the evidence in the record (as briefly summarized by Judge Fuentes), it appears that the Government is insisting that Rawls’ incarceration for contempt be continued even though it already possesses sufficient evidence of Rawls’ possession and production of child pornography to obtain a conviction under various subsections of 18 U.S.C. §§ 2251 and 2252. In fact, Rawls’ own sister’s testimony regarding Rawls’ possession of a video of his two nieces, aged four and six, may very well be sufficient to convict him of possession and/or production of child pornography involving a minor in his custody or control.

The government appears to want to punish Rawls simply for being uncooperative and to continue this punishment as long as possible before he faces an even longer sentence for the alleged crimes.

I therefore cannot fathom why the Government is so insistent upon further gilding the lily with the evidence that may well be in the encrypted files on the disputed hard drives and demanding his imprisonment until he “coughs up” that evidence. There may well be some justification for insisting that Rawls be imprisoned on contempt charges before his all but certain prosecution for child pornography and the very severe sentences he would be exposed to if convicted for the latter offenses, but such justification for the Government’s conduct here certainly escapes me.

This isn't a case where evidence necessary for a conviction remains out of reach. The government already has enough to pursue a decades-long sentence. Starting Rawls off with four years in jail before even bringing the case to trial is punishment for punishment's sake. It does not weaken the government's case if the drives remain encrypted. All it does is prevent the government from stacking counts as high as it apparently wants to, forcing it to work with the illegal images it has already recovered.

The Fifth Amendment question remains undisturbed for now. But at least in cases like these, where the government uses a 200-year-old law to compel decryption, it will only be able to lock up unwilling (but presumptively innocent) "witnesses" for 18 months, rather than for the rest of whatever.

Filed Under: 4th amendment, 5th amendment, contempt, decryption, francis rawls, indefinite confinement, passwords


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  • identicon
    Anonymous Coward, 12 Feb 2020 @ 4:20am

    If only law was applied to everyone on equal measure. This dirtbag deserves to rot in jail but not in a way that weakens fundamental rights for everyone else. Its really true that bad cases create bad laws. At least we aren't talking contempt of congress here or they guy could just flout it without worry and goat at the court about it not getting the evidence with impunity.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Feb 2020 @ 5:15am

      Re:

      What are your thoughts on due process?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Feb 2020 @ 4:22pm

      Re:

      Why? There's zero evidence he harmed anybody. In the very least, doctors who deliver babies, in the US and in Israel, are far more heinous, by practicing the act of circumcision, which is sexual torture of babies.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 13 Feb 2020 @ 1:48pm

        Re: Re: child porn is not a victimless crime

        Child porn causes harm against the children who are in the pictures. Both from the initial trauma/abuse and the ongoing knowledge that your pictures might still be out there.

        reply to this | link to this | view in chronology ]

        • identicon
          International CP Religious Frontgroup, LTD., 14 Feb 2020 @ 5:20am

          Re: Re: Re: child porn is not a victimless crime

          Evidence for that blind assertion, AC?

          My high school yearbook photo still embarrasses me, but one victim does not equate with all children at all times, forever.

          And, if it bothers you so much(and why does it bother YOU so much, anyways?) why dont you lobby the NCMEC and the FBI, and especially the NGOs and local law enforcement agents from Britain, Australia, and the US et al to stop re-distributing it every chance they get?

          Facebook, Instagram, et al, and the privacy rape of all of our data are also forever, and I am certain that the kids of today posting pimple faced selfies as they weep over teen heartaches will be embarassed in ten years as big data exploits their images and thoughts in new ways too.

          That is also irreparable harm against children.

          Are you active against THAT form of child exploitation also, AC chatbot, or are you just focused on child porn?

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Feb 2020 @ 4:42am

    He now can sue for rights violations

    Since he has been kept far longer than the 18 months maximum he now will get to sue the people who kept him there and will win millions. He might even get his conviction tossed over abuses he suffered during the time over 18 months. Cruel and unusual punishment isn't just there for shits and giggles.

    reply to this | link to this | view in chronology ]

    • icon
      James Burkhardt (profile), 12 Feb 2020 @ 6:48am

      Re: He now can sue for rights violations

      More likely, if he pursues a claim for an unlawful imprisonment, he will get credit for time served (2-1/2 years) on his eventual sentance. If he suffered abuse he might get money. Overturning a conviction based on abuses at the hands of the prison is unlikely, as it would not eradicate evidence. The worst is likely a sentencing reduction, rather than declaring his conviction void.

      reply to this | link to this | view in chronology ]

      • identicon
        Adam, 12 Feb 2020 @ 9:10pm

        Re: Re: He now can sue for rights violations

        I'm not sure credit for time served would apply given it's a civil contempt charge vs.a criminal charge and not time on remand or awaiting bail. Though i'm not an expert here.

        I would think the more likely approach would be that he is awarded monetary damages for the current spell and incarcerated for any potential future conviction.

        reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    CleverWaiver, 12 Feb 2020 @ 5:13am

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  • identicon
    Anonymous Coward, 12 Feb 2020 @ 5:17am

    Some advertisers think they have a right to post irrelevant trash to any website they want.

    reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 12 Feb 2020 @ 6:17am

      Re:

      That's pretty much the basic concept of spam right there -- because they CAN send you a message at little expense to them and with most of the expense borne by the recipients, they feel they have morality on their side when they do so.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Feb 2020 @ 7:42am

    The Fifth Amendment question remains undisturbed for now. But at least in cases like these, where the government uses a 200-year-old law to compel decryption

    Breaking news! Outmoded 230-year-old law used to strike down application of outmoded 200-year-old law!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Feb 2020 @ 9:44am

    Can it be salvaged?

    While I don't care much for the molester, it would be nice to see the law salvaged for Manning. Though I suspect there's one or many loopholes already laid out, to be able to keep torturing the "traitors".

    reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 12 Feb 2020 @ 11:23am

    In fact, Rawls’ own sister’s testimony regarding Rawls’ possession of a video of his two nieces, aged four and six, may very well be sufficient to convict him of possession and/or production of child pornography involving a minor in his custody or control.

    I'm curious why he's not being prosecuted for molesting his nieces rather than just possessing a video of them. Wouldn't that be the more serious and important charge?

    Or is it likely that no molestation occurred and that the video his sister told the police about was something non-pornographic, like them playing in the bathtub?

    He may very well be a pedophile and may have thousands of real CP images, but it concerns me that one of the pieces of evidence they want to use against him is a video of his nieces that his sister considers pornographic, but that apparently isn't enough to charge him with molesting them.

    reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 12 Feb 2020 @ 1:24pm

      Re:

      There's enough detail in this Ars Technica story that I think it should answer that question. And that's about all the reading I intend to do about the allegations. Ugh.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 12 Feb 2020 @ 4:28pm

        Re: Re:

        The allegations are quite possibly false. The Salem Witch Trials involved very similar accusers. They can grow addicted to the power they yield by lying.

        reply to this | link to this | view in chronology ]

      • identicon
        Rekrul, 13 Feb 2020 @ 2:18pm

        Re: Re:

        There's enough detail in this Ars Technica story that I think it should answer that question. And that's about all the reading I intend to do about the allegations. Ugh.

        Thanks for the link.

        reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Andrea Dworkins Pig-like Vagina, 12 Feb 2020 @ 11:27am

    the rest of whatever, lol.

    Yeah, funny how first/fourth/fifth/sixth/14th amendment heroes are always the child porn guys.

    Sure, no conspiracy here, mooooove along folks. No one has designed or premeditated or instituted this Hegelian conflict....

    re:policeman Francis Rawls has been locked up since 2015 for refusing to decrypt external hard drives the government claims contain child porn images

    reply to this | link to this | view in chronology ]

  • icon
    btr1701 (profile), 12 Feb 2020 @ 1:39pm

    Starting Rawls off with four years in jail before even bringing the case to trial is punishment for punishment's sake.

    He'll almost certainly be credited for that time on his eventual sentence after conviction. So if he gets 30 years, they'll take those four off the top and he'll go in for 26.

    reply to this | link to this | view in chronology ]

    • identicon
      Fraternal Order of Pedophiles(FOP), 13 Feb 2020 @ 11:51am

      Re:

      Nah, the guys a cop!

      They always get a break from sentencing judges, no matter how evil their crimes.

      In this case, he might get time served, and then, special arrangements and special monitoring of his internet connections afterwards by heroic Infragard agents,LEIU members, and Fraternal Order of Police pedophiles who are all curiously and extremely close to:

      • children, and
      • child pornography, prostitution, etc.
      • narrative control about how the police distribute child porn all across the globe to catch scapegoats

      Cuz its for the children btr! You should know this, right?

      He'll get time served, because hes still extremely useful to this built in systemic failure of protecting children.

      reply to this | link to this | view in chronology ]

    • identicon
      Rekrul, 13 Feb 2020 @ 2:22pm

      Re:

      He'll almost certainly be credited for that time on his eventual sentence after conviction. So if he gets 30 years, they'll take those four off the top and he'll go in for 26.

      With the ironic part being that mere possession of child porn will probably get him more time in jail than an actual child molestation charge.

      reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 12 Feb 2020 @ 3:11pm

    If a crime is bad enough...

    The US Supreme Court has opined that evidence discovered through illegal search may be admissible if a crime is bad enough (e.g. possession of contraband or worse). So it's only one small step for suspects of child sexual abuse or viewing child porn to automatically have no fourth-amendment or fifth-amendment rights, because anyone who views CP or abuses a child is a scumbag who deserves to rot in jail (and get raped and murdered by his fellow inmates).

    Then it's only one more small step for all less-than-fully-cooperative suspects to be accused of viewing child porn (maybe CP that a law-enforcement officer provides) in order to strip him (her) of his rights.

    And it's no coincidence that all enemies of the current regime have CP habits. In fact, our hero realizes he's been targeted when he finds an irregular data dump on his personal device.

    I've read this dystopian police procedural thriller before.

    reply to this | link to this | view in chronology ]

  • identicon
    Unknown, 12 Feb 2020 @ 5:16pm

    Contempt

    The accused and the crimes in question are wholly irrelevant. The central question is : do the courts/law enforcement have the right to force the defendant to do their jobs for them? In other words, if the law finds a safe/door/whatever that is locked, do they force the defendant to open it for them? Sure they can ask... If it's hard to open is immaterial because the burden (and the fact they get paid to do their jobs) is on them. It is THEIR job to get the evidence. The defendant need not lift a finger.

    If they want to get the contents of the storage device, then bloody well learn decryption. It's not the accused's job to give them the evidence on a silver platter.

    If they want it, go get it. Don't ask anyone else to do their job for them.

    This law has contempt for the governed.

    reply to this | link to this | view in chronology ]


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