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.

Comments

5th ammendment

[Anonymous Coward]

As much as I lack all sympathy for people in possession of child pornography, how is this not against the fifth amendment?

Re:5th ammendment

[Anonymous Coward]

Personally I don't care about the child pornography pictures and movies. More precisely, to me they're evidence of wrongdoing, they're horrible and I never want to look at them, but they in and of themselves shouldn't be criminal to possess.

That last bit is because it's too easy for another miscarriage of justice to claim another victim. Just punishing for possessing pictures is folly and it doesn't really matter what is in the pictures at all. Worse, the law as it stands means manpower is wasted on symptoms and it drives the real perps, those who actually abuse children making the filth, that much deeper underground, making them harder to catch. I want child abusers to be caught, and for that I want law enforcement to be effective, not stupid and petty. This here case is a good example of stupid and petty, even though apparently this specific situation has been twisted not to fall under the fifth.

What we should do instead? Keep a close eye on people who like child porn and make sure they never get close to actual children. In such situations it's much better to know people's tastes and remain vigilant than to try and punish for "poor taste" just so you no longer have to think about it.

Anyhow, I suspect this guy might figure he's much better off indefinitely imprisoned without conviction than being a cop and a convicted child botherer in prison, effectively until his death in any case. I say might because maybe he's just dug his heels in on principle and is in it to spite the system, even at the cost of life inprisonment without conviction in a supposedly free and just country. Also because being declared not guilty doesn't get him his job back, or his reputation, and this way he's guaranteed minimal but humane treatment. So he's in a bad situation but his options at change are worse. Better to be stuck in limbo then. I know I'd be very tempted to not give in just on principle, regardless of what's on the hard disk drives.

Re: Surely a fundamental human rights breach?

[mwvdlee]

What if the drive does NOT contain child porn but DOES contain information incriminating him of something completely unrelated?
Would the government be allowed to use that other information?

*sigh*

[SharpFang]

I wonder how it would go:

I plead the fifth.

There is no child porn on this drive. But there is software, which I have purchased legally, but don't possess the proofs of purchase; they've been lost during a move a year ago. Currently, the copyright-related laws take the approach 'guilty until proven innocent' upon discovery of such software - without proof of purchase I'm automatically assumed to have obtained it illegally. Therefore revealing contents of the drive would incriminate me on a case entirely unrelated to the current one, and in an especially unfair way since despite being innocent I'd be required to prove my innocence, and unable to do it, proclaimed guilty.

Re:*sigh*

[KagatoLNX]

I am not a lawyer. That said, here are a few comments on how I understand things and where I think they'd go. Your mileage may vary.

I always chuckle at this sort of thing. I like to call this "The Reiser Defense". If you ever followed the Hans Reiser trial, you'll note that he had a fundamental misunderstanding of how law works (or even is supposed to work). As a developer, he saw laws as a program. He thought that he had the program set up so as not to be able to convict him.

As it happens, the Law is not a program or set of mechanical rules. The Law may *appear* to be that way, but that's mostly a side effect of one of its goals. The Law is intended to be predictable so as not to be perverse when applied to people. The theory goes that people can only be held accountable for breaking laws if they can reasonably have been expected to know that they would fall afoul of it.

As it happens, this is not a blank check. You have responsibilities not to be entirely ignorant of the law. You have responsibilities to cooperate with law enforcement and the Court. You do not get to interpret the law any more than is necessary to mount your defense. All of your interpretations are subject to validation and endorsement by the Court. So the process surrounding justice use the trappings of a program or set of mechanical rules, but that is largely a construct to allow you to cooperate with the Court in executing the upholding the intent of the Law.

In fact, it's why it's called Contempt of Court. You have rights under the Law. It's the Court's responsibility to uphold those rights for you. Criminals do not respect the Law. If you behave in such a way as to prevent the Law from being applied by the Court, you show contempt for the rule of law and you hurt your chances in being able to exercise your rights under it. This is a fairly obvious social contract, and that contract--not some expectation that the law function as some sort of autistic machine--is what fundamentally underlies Due Process.

The Fifth Amendment is a law like any other. It's intention is to ensure that the parties involved in justice maintain separated duties. The theory is that you and the prosecution make claims and the court evaluates those claims. If the Court were permitted to compel you to make certain claims, then it's no longer really evaluating them and the integrity of the system breaks down. That's the context that Fifth Amendment lives in and that's the context within which Courts will evaluate it. It is not a "technicality" that gets you out of cooperating with warrants. So, while the law cannot force you to say something is true or false against your will, it *can* compel your cooperation in unlocking the filing cabinet containing the evidence that implies the same thing. That's the difference, evidence is different from testimony.

There is a bit of a grey area around combinations / passwords. This is largely due to prosecutors abusing your unwillingness to give them unfettered access to something as being parleyed into some kind of claim of guilt. That's what the Fifth Amendment addresses--your lack of a statement cannot be construed as a claim of guilt. This started with a dissent from the Supreme Court that mentioned that giving up the combination to a lock amounted to testimony that you had access to what it protects. It's similar to a different case where the prosecution subpoenaed "all of the papers that apply to " and the 5th was upheld as saying evaluating which papers were submitted papers would be tantamount to asking for testimony that some of the stuff was illegal. That fine line between testimony and your duty to comply with the collection of evidence by authorities is something best discussed with a lawyer, because it is not a silver bullet.

I believe that your unconventional take on copyright law isn't likely to get you anywhere. You're effectively claiming that Copyright Law puts you in a 'guilty until proven innocent' which is, more precisely, claiming a violatio

Re: Surely a fundamental human rights breach?

[CrimsonAvenger]

Unfortunately Snowdon is branded a traitor by half your country

I doubt seriously that half my country even remembers who Snowden is. And that's assuming they ever knew.

The government has a hard-on for Ed Snowden, and a lot of the tech community supports him. Outside that? Not so much....

Re:So forgetting a password

[msauve]

I find that court contemptible, and won't change my mind.

Re:So forgetting a password

[Anonymous Coward]

If there is kiddie porn on those drives, then he's actually making the smart move. Either way, he's fucked. But at least this way, the state has to pay for his room and board. If he turned over his passwords, conversely, he would get several years in prison anyway but then also be thrown out at the end on the sex offender registry, pretty much guaranteeing that he will never be able to get a job or place to live ever again. As long as they hold him in jail, he at least has food and a place to live and there remains a chance that he may make it out of this without being on the sex offender registry.

If he takes the kiddie porn charge, it's almost as bad as a death sentence. His life will be destroyed and there will be no options to even survive.

Re:So forgetting a password

[SecurityGuy]

Agreed, this is appalling. I have two encrypted databases on my phone. Why two? Because I forgot the password to the first one and had to start over. No power in the world can compel me to unlock that first one. Believe me, I tried.

The notion that I could be put in jail forever because I legitimately don't remember a password is insane.

Re:So forgetting a password

[MightyMartian]

The judge believes (and there's no reason not to agree with the reasoning that I can see) that the accused is quite capable of decrypting the data, and the man is thus defying a court order, and is in contempt. That's how the system is supposed to work. Are you saying courts shouldn't have the power to compel the production of evidence?

Re:So forgetting a password

[hairyfeet]

Except that means exactly jack and shit thanks to trolls, there is even an article on Wikileaks called "confessions of a child pornographer" where he brags about using viruses to infect random guys that go to one of his legit porn sites and filling their PCs with CP and having them connect to known FBI honeypots because he thinks its funny to have the cops chasing their tails and figures the more time they waste going after his fakes the less time they have to go after his legitimate customers.

According to my buddy at the state crime lab the whole charade is just that, a bullshit waste of time, which is why he is trying to get transferred out. He says he can't even remember the last time they actually caught a predator online (those they catch when someone the scumbag molests comes forward) but instead all they ever catch is porn addicts which could easily be treated with a little therapy but instead they have to pretend they are dangerous because...well the prosecutor wants to get a shot at congress or the governors chair in a couple years.

So hundreds of millions are spent, the actual predators get to sit back and laugh about it because they keep their stash on an encrypted server in bumfuckistan and just access it via VPN, and you get to pay millions to keep some losers that haven't left their basements in years in solitary because they couldn't get it up anymore after watching a billion hours of porn without watching the sickest shit they could find, but hey, the prosecutor can say he's "tough on crime" and will get that shot at the big chair where he can clean up off the backroom deals....welcome to reality where its ALL politics..and then folks wonder why guys who take the job spend all of 6 months and then start looking for the exit.

Re:So forgetting a password

[gurps_npc]

We are saying that the power to compel to produce requires proof that the evidence exists.

Say you are a prosecutor. You have a picture of the defendant holding a bloody knife. You ask for and get a court order requiring the defendant to produce that knife.

Should that defendant be jailed for producing a slab of melted steel that they claim is the knife?

Of course not. He produced what he could. They demanded he produce the hard drive. He did. He can't be required to produce the password, as he can easily claim that he has forgotten it.

The only way the judge can charge or hold him if the judge can prove that he has not forgotten the password. Not "thinks he hasn't forgotten it', prove he hasn't forgotten it. Yes, that's impossible to do. Which is why the Judge should not be able to give this order.

Re:So forgetting a password

[Cytotoxic]

...and yet Hastert only gets 15 months.

This is actually very relevant to this case.

Hastert got 15 months. For withdrawing less than $10k from his bank account several times. Literally. That is the crime he was convicted of. It is illegal to move less than the reportable amount of money ($10k) in order to avoid having it reported. It is called structuring. Could be the most ridiculous, made-up crime of all time. And for this made-up crime the prosecutor said he should get 0-6 months.

But because he was also a dirty molester and they couldn't convict him on that, they said they should make an example of him to deter other molesters so they would know that they couldn't get away with it. Literally. This is what both the prosecutor and the judge said.

So not that he doesn't deserve worse - but there is something fundamentally wrong with the notion of punishing people for crimes they have not been convicted of or even charged with. "Everybody" knows this cop is a dirty child-porn watching creep. So let him rot in jail. Hastert admitted that he did something wrong with some high school boys, but we can't get him because of the statute of limitations. So find something else and push his punishment beyond the guidelines. (they also tacked on a $250k payment to a victim reimbursement fund and mandatory sex-abuse counseling - things he was not charged with)

In the immortal words of Clint Eastwood, "Deserve's got nothin' to do with it." Either we are a nation of laws, or we aren't. And letting the gross and creepy edge cases define our law is not the way to be a nation of laws.

Re: So forgetting a password

[ooloorie]

The 4th amendment protects you from illegal searches, but the authorities have a warrant so there is nothing illegal about this search.

And the government is free to search to its heart's content. It should not be free to compel action on the part of the defendant that would result in self-incrimination.

The suspect is actually committing a crime called obstruction of justice by not complying.

That's your view, not settled law. I and many other Americans find that view of "obstruction of justice" to be dangerous and unacceptable.