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

So forgetting a password

[allo]

May keep you in jail. Forever.

Re:So forgetting a password

[Anonymous Coward]

The sad thing is that they don't have enough evidence to convict him.

The authorities have called two witnesses. One was the suspect's sister who claimed she looked at child pornography with her brother at his house. The other was a forensic examiner who testified that it was his "best guess" that child pornography was on the drives

Meaning that the only thing they have on this guy is an accusation from the sister. The other witness have essentially only said that "Well, it's encrypted, what else could it be?"

This means that if you want to put someone in jail forever all you need to do is to hide an encrypted drive (Or fill it with random noise) in their home and accuse them of keeping child porn on it.
Without being able to produce a decryption key the poor bastard will be kept in custody indefinitely, probably with less access to exercise and books than a convicted pedophile would.

Re:So forgetting a password

[Anonymous Coward]

I totally agree. Without EVIDENCE there is no case here. Just because somebody in power 'thinks' he has committed a crime, without any evidence, there is no reason to keep him in prison, and just as you say, you just have to hide an encrypted drive in somebody's house and accuse them of owning child pornography, and they can be kept in prison indefinitely, for having done nothing!

Re:So forgetting a password

[ShanghaiBill]

I totally agree. Without EVIDENCE there is no case here.

There is evidence. Certainly not enough to convict, but enough to get a warrant to search for additional evidence. The key question is whether he can be compelled to assist in that search. The Supreme Court has ruled that a suspect cannot be compelled to provide the combination to a lock, so I don't see how this is significantly different.

Re:So forgetting a password

[Maritz]

It's different because terrrrristchildrens.

Re:So forgetting a password

[TFAFalcon]

Well that solves the whole problem of 'lack of evidence'. The court can just order each defendant to produce the evidence to convict them. If they don't, then jail them until they do.

Re:So forgetting a password

[fey000]

Or we can throw them in the ocean to see if they float or drown.

Re:So forgetting a password

[mysidia]

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.

Re:So forgetting a password

[Richard_at_work]

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.

Re:So forgetting a password

[ole_timer]

under the 5th amendment he can't be compelled to "utter" the passphrase, but he can be compelled to provide the unencrypted contents in most jurisdictions.

Re:So forgetting a password

[gweihir]

And in other news, if the judge just says "screw him" then the person is screwed. And nothing is ever going to happen to the judge for that evil act.

Re:So forgetting a password

[gweihir]

This interpretation is just fundamentally evil as it negates the intended protection for the accused. But what do you expect in a police-state.

Re: So forgetting a password

[Anonymous Coward]

Alleged...

As someone who had to assist in a NCIS hunt for child porn on a subordinates computer who of course had none but all it takes is an accusation, I dont trust searches like this.

Not to mention that information would fall directly into the Fifth Amendment as that information would be providing witness against yourself.

If they need that one HD in order to nail this guy then they don't have enough evidence... Should have tried harder. They didn't build a solid enough case with enough evidence before pulling the trigger.

Re:So forgetting a password

[phishybongwaters]

You don't think this is actually about child porn, do you? You can't be that thick, can you? You must understand, even at a very basic level, that kiddie porn has been, and always will be, a lynch pin in the restrictions of your rights and freedoms. We must outlaw encryption because.... TERRORISM! But... the terrorists didn't use encryption. KIDDIE PORN! EVERYONE HATES THAT! I've called this so many times. In fact, if you go through my post history you should find some posts on the Apple case with the FBI, where I literally said this exact this is going to happen (unless I posted as AC, depends on the computer i'm at). They've used this to fight piracy and boost copyright laws. They've used it to completely destroy usenet. And they are using it now to destroy encryption. And the best part of all of this? The NSA and any law enforcement agency that bothers to ask, already likely has access to the network these images came from. This isn't about stopping child porn, and it's not about protecting kids and putting pedophiles in jail. It's about outlawing, or neutering, encryption because it takes slightly more effort to spy on you if you use encryption. It has never been about child porn. Ever

Re: So forgetting a password

[ooloorie]

Now, what we don't know is what that analysis found. They 'may' have seen that those disks were used at the same time as the accessed the child porn site, and 'may' had other evidence on his computer that showed he likely downloaded. If so, that would all be pretty compelling evidence as a whole.

Then they don't need to force him to decrypt his hard drives, do they?

And make no mistake: while this sort of thing starts with the lest likable characters, it will eventually be used against anybody from Snowden to your grandmother to go on legal fishing expeditions against anybody that police, prosecutors, or the executive branch doesn't like.

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

[Mattcelt]

That's actually precisely what the fifth amendment is about - that the courts do not (and should not!) have the power to compel the accused to produce evidence that would be incriminating or harmful to themselves or their case.

This is fairly clearly an abuse of judicial power. Abstracting the incrimination one level does not suddenly make it acceptable.

Re:So forgetting a password

[Sarten-X]

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.

Re:So forgetting a password

[msauve]

" If the evidence already exists (as encrypted data on the hard drive)"

Ah, but it's NOT known to exist. The prosecution only suspects there's evidence on the hard drive, and they're fishing.

Re:So forgetting a password

[JustAnotherOldGuy]

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.

Yes, but not if they only suspect that there might be a confession in the safe. Otherwise it's a fishing expedition and that's not allowed.

If this was permitted then cops would be able to pick any house at random and search it for whatever they suspect might be in there.

Re: So forgetting a password

[Cederic]

If this guy is innocent then he can work with them to show he is innocent. Let the Project see the evidence.

Ok, so lets lock you up. I'll draw up a list of crimes you may or may not have done and we'll keep you in prison until you've worked with the Innocent Project to prove your innocence on all of them.

Shouldn't take too long, I'll keep the list down to a couple of thousand different offences.

That said, if YOU were accused of having child porn I tend to think you would do everything in your power to show that wasn't the case. If you don't want child porn, think murder, rape or embezzlement.

That has nothing to do with whether I'm innocent though, and certainly nothing to do with whether it's appropriate to imprison me with no evidence.

Well...

[Anonymous Coward]

The following comes to mind:
https://xkcd.com/538/

Sure it's not a hammer, but incarceration sounds like a reasonably persuasive wrench...

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

[phantomfive]

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).

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 [...] but they in and of themselves shouldn't be criminal to possess.

The problem with this argument, and the reason it's been deemed illegal, is that if it's legal to possess something, someone will be happy to sell it to you. If there's money to be made with something, people are more likely to do it, even if it's illegal. Legalizing child pornography leads to a greater incentive to create child pornography.

It's basically the same reason it's illegal to hire a hit man.

There is also a secondary reason, and that's that any child in such a situation cannot have legally given consent to be involved. If it's legal to own, then there is no legal recourse someone would have to remove pornographic pictures of themselves from somewhere. For example, how about seeing something like this on store shelves at the local video store with a nice big sign saying "local talent's first film"?

Yeah, they say that.... but then they hold that animated depictions of children in erotic situations are child pornography and are illegal. So even when there is no child involved at all, it is still a crime. This knocks that "for the children" argument off the table, even though pedophiles do some evil and demented stuff to children in order to produce real kiddie porn.

It is illegal primarily because it is icky. And very few people are willing to go to the mat over something as sick as getting off to images of little kids. Heck, I hesitate to even bring up the point because some idiot is bound to think that I'm arguing in favor of kiddie porn. In fact, I'm gonna post anonymous because folks tend to be incapable of actually comprehending a nuanced argument when "for the children" is involved, and I don't need the drama.

We see the same impulse with vaping. Even though e-cigarettes are orders of magnitude more safe than real cigarettes, the anti-tobacco folks are out for blood on vaping - because it reminds them of smoking cigarettes. Even though all evidence suggests that having e-cigarettes available as an alternative to cigarettes will save lives, our governments are moving to eliminate them as an option.

Similarly, from what I've read psychologists think that looking at kiddie porn can be an outlet for pedophiles and might reduce the impulse to actually act out on their fantasy. So if they are right, then animated kiddie porn might be a way to prevent harm to children. Which makes the finding that animated kiddie porn counts as illegal kiddie porn kinda ironic.

Re:Surely a fundamental human rights breach?

[Anonymous Coward]

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/

Re: Surely a fundamental human rights breach?

[Racemaniac]

"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.

Re:What?

[phantomfive]

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.

*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:Encryption is useless

[LQ]

... it could very well happen that one day I'll go out guns blazing, literally.

Ah, yes, the American Dream.

Boogeymen

[fnj]

Whom you would destroy, first dehumanize him by labeling him. It's OK to do anything to him, deny him any rights, if he's not human.

First they come for the suspected terrorists and suspected child pornographers. But it won't stop there.

Revenge porn and right of publicity

[tepples]

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.

Reasonable

[s.petry]

I have no idea why people insist on forgetting that part. Lets try an analogy. I invent a cypher and print a code on a paper. The court can grant a warrant to get the paper, but that does not mean they can grant a warrant to get the cypher key from my head. The 4th and 5th amendment are very clear on that. Even though our founding fathers are claimed to have never thought about things, they actually knew damn well about encryption and the need for personal secrecy. What if my encrypted paper contained plans to overthrow the tyrannical King. What if my paper was a personal confession for deeds the Church would frown on, but deeds that are not illegal (like Lust).

People always try to press the system for more, and again this is something the founders KNEW. This is why we have a Constitution which states "reasonable search and seizure", leaving no room to think it's everything someone can possibly conceive of.