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Child Porn Suspect Jailed Indefinitely For Refusing To Decrypt Hard Drives (arstechnica.com)
An anonymous reader quotes a report from Ars Technica: A Philadelphia man suspected of possessing child pornography has been in jail for seven months and counting after being found in contempt of a court order demanding that he decrypt two password-protected hard drives. The suspect, a former Philadelphia Police Department sergeant, has not been charged with any child porn crimes. Instead, he remains indefinitely imprisoned in Philadelphia's Federal Detention Center for refusing to unlock two drives encrypted with Apple's FileVault software in a case that once again highlights the extent to which the authorities are going to crack encrypted devices. The man is to remain jailed "until such time that he fully complies" with the decryption order. The government successfully cited a 1789 law known as the All Writs Act to compel (PDF) the suspect to decrypt two hard drives it believes contain child pornography. The All Writs Act was the same law the Justice Department asserted in its legal battle with Apple.
Article 5. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Article 6. Everyone has the right to recognition everywhere as a person before the law.
Article 9. No one shall be subjected to arbitrary arrest, detention or exile.
Article 10. Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
Article 11.
(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
(2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.
Source: http://www.un.org/en/universal-declaration-human-rights/
Unfortunately for this guy, the 5th has been established to NOT apply in this circumstance, as it is not the suspect's testimony they are seeking, but instead to access something he possesses. It has been likened to if a person has a safe the police have a warrant to search, the person in charge of said safe must provide access to it. I believe the most a lawyer could do for him, given the case law, is get him to enter the password in private so as to not be seen, but that's about it. Now that doesn't mean it is just, but that's what the rules of the system are currently.
"Brussels has effectively enacted curfew and everybody is fine with it"
as a belgian i must say this is the first i heard about that
probably right after the bombings there was some kind of curfew for a short period when they were still hunting down some suspects, but life is just returning to normal, as you would expect.
Actually, there's case law in the opposite position as well that says you cannot be forced to give over a password under the 5th Amendment; physical encryption keys is another matter. Eventually, this will need to be ruled on by the SCOTUS. He's going to have to wait until his case gets cleared by a judge.
"Be particularly skeptical when presented with evidence confirming what you already believe." -
Here is an analysis of the topic. So far, the question has not been addressed by the supreme court, and other courts have issued mixed decisions.
"First they came for the slanderers and i said nothing."
You don't have to be a witness against yourself, but you do have to provide physical evidence. For example, if a fingerprint or blood was found at the crime scene, you can be compelled to give your fingerprint or blood to test for a match.
The purpose of the 5th amendment is to prevent situations where police can torture you, or harass you until you confess. That isn't really an issue in the case of DNA or a fingerprint, because the police can't harass your fingers or blood into confessing.
Even so, the courts are conservative, and won't force you to give evidence if it can be found some other way. For example, they can't force you to open a combination lock on a safe, because the police have the capability to crack the safe. So the court won't force you to do that.
In the case of an encrypted hard drive, there may be no other way to get the evidence other than the owner decrypting it. So how will the courts rule? I have no idea, it's a complicated case, and the use of the "all writs act" makes it even more complicated. As likely as not, the court will rule based on a strange technicality in order to avoid the heart of the problem.
(A person can be held indefinitely if they defy a court order, they will be in contempt of court. I think that is true in basically every jurisdiction in the world. The power of the law is heavy).
"First they came for the slanderers and i said nothing."
You're almost completely wrong.
Supreme Court case law is 5th Amendment says you don't need to provide a password to a safe. 11th Circuit case law expands this to say you don't need to provide the password to an encrypted disk.
There are no district court decisions which support your position, exactly. There are a few district courts and the Supreme Court of Massachusetts which rather obviously misapplied the foregone conclusion doctrine to get the result they wanted in specific cases, but nothing else.
Pennsylvania isn't in the 11th Circuit. The EFF supports an expansive 5th Amendment when it comes to disk encryption, so I suspect the EFF may take this case up and appeal it to get some precedent set, now that they know about it.
vi ~/.emacs # I'm probably going to Hell for this.
IANAL and all that, but can't they hold someone in contempt indefinitely?
It is only legal to hold them in contempt if they ARE capable of complying with the order.
At such time as the person is physically or mentally incapable of complying with the order, for example, they don't have the information required, or it is not possible for them to perform as requested, they cannot be held in contempt.
A judge is also required to take into account the probability that further incarceration is likely to be conducive to the goal - holding someone in contempt of court is not a punitive measure, its a conducive measure, so if its unlikely to achieve the goal required then a judge is not supposed to continue holding someone in contempt.
If it's legal to own, then there is no legal recourse someone would have to remove pornographic pictures of themselves from somewhere.
If child pornography were decriminalized, the producer of the work would need to provide a model release signed by the actor's parent. Otherwise, the recourse would be revenge porn laws and trademark-like right of publicity laws.
That's a nice theory, but unfortunately it's wrong. For example, it has been established that compelling a suspect to give a handwriting sample (Schmerber v. California, 384 U.S. 757 (1966)) or to speak for voice identification (United States v. Dionisio, 410 U.S. 1 (1973)) does not violate the Fifth Amendment. Also permitted is compelling a suspect to sign a document that e.g. a foreign bank requires to release some information, although I'm too lazy to come up with a reference.
Unless you are an omniscient deity, the disk is indistinguishable from one with random bits. So there are no "actual files" on the disk until it gets decrypted. Furthermore, there is a pretty clear line between searching someone's possessions (legal with a court order) and forcing them to assist in their own conviction by producing evidence (unconstitutional). This falls under the latter category.
No.
The definition of the word "produce" is important. If the evidence already exists (as encrypted data on the hard drive), then the court can compel someone to produce (deliver) it to the investigators.
The 5th Amendment protection is to intended to prevent the court from forcing confessions. To that effect, the court is not allowed to compel a defendant to produce (create) evidence against themselves that did not already exist.
As an analogy, the court cannot compel you to write a confession. If you already wrote one and put it in a safe, they can compel you to give them the combination to the safe.
You do not have a moral or legal right to do absolutely anything you want.
No, the intended purpose of the 5th Amendment is to prohibit use of a refusal to testify as evidence of guilt. In the bad old days, a ruler or government would put you on trial and tell you to confess. And if you refused, your refusal was accepted as evidence of your guilt, thus creating a catch-22. The 5th Amendment's protection against being forced to testify against yourself put a cold stop to that.
If the court has reason to believe someone is hiding evidence, the State compelling him to give it up is not prohibited by the 5th Amendment. e.g. If the State is reasonably sure a guy killed his wife (blood all over the house, bloody knife with his fingerprints all over it, bloody drag marks to the garage, and blood in the trunk), they can press him to reveal where he dumped the body. The 5th Amendment does not protect him from that. All it does is prohibit using his refusal to cooperate as evidence of his guilt.
If there's a transgression here, it would be the 6th Amendment - right to a speedy trial. This is actually a hole in our legal system. While you cannot be held indefinitely if the police (executive branch) does not press charges, you can be held indefinitely if the court (judicial branch) gives you an order and you refuse to obey it (contempt of court - no trial needed). About a decade ago there was some journalist who spent 2 years in jail because a court ordered him to reveal his source for a story, and he refused.
Your point of view is strange.
When i am innocent and accused of anything, nothing should happen when i stay silent all the way. If anything happens without any evidence (which cannot be there, because i am innocent) and they require me to prove my innocence, we've lost our liberty.