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Sen. Rand Paul of Kentucky and Rep. Tim Walberg of Michigan have introduced legislation to reform civil asset forfeiture, a practice by which law enforcement agencies seize the property and assets of individuals with minimal due process.

The practice has encouraged policing for profit, distorting the mission of police agencies toward revenue generation to the detriment of the property rights of Americans. Pauls and Walbergs bill should unite those concerned with upholding constitutional rights and justice more broadly.

The FAIR (Fifth Amendment Integrity Restoration) Act, previously introduced by Paul in 2014, seeks to shore up the rights of Americans facing civil asset forfeiture proceedings and curb the perverse profit incentives which underline the practice.

The federal government has made it far too easy for government agencies to take and profit from the property of those who have not been convicted of a crime, said Paul. The FAIR Act will protect Americans Fifth Amendment rights from being infringed upon by ensuring that government agencies no longer profit from taking the property of U.S. citizens without due process.

Under current practices, federal agencies, often in partnership with state and local police departments, may seize a persons cash, home or vehicle simply upon the suspicion that such assets were connected to criminal activity. One need not even be charged or convicted of a crime to have personal assets permanently seized.

All the government needs to do is meet the relatively low standard of a preponderance of the evidence to prevail in court while innocent owners have the burden of trying to prove their innocence and bearing the costs of legally opposing government authorities.

This has created a situation where the federal government has seized billions of dollars in assets under questionable circumstances. According to the Institute for Justice, from 2001 to 2014, the forfeiture funds of the Department of Justice and Treasury Department took in nearly $29 billion. This provides financial incentive to both federal agencies and state and local partners, who get a cut of the money through equitable sharing, to increasingly focus on cases with revenue-generating potential.

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To ameliorate the litany of problems associated with civil asset forfeiture, the FAIR Act does a number of important things consistent with the values this nation was founded upon. Among other things, the FAIR Act removes the profit incentives involved by directing proceeds of federal civil asset forfeiture to the Treasurys General Fund to be used at the discretion of Congress, rather than federal agencies. Doing this also ends the practice of equitable sharing, thereby reducing the incentives of state and local law enforcement agencies to prioritize revenue-generation.

The current system disadvantages the innocent, who often lack the resources to take on the federal government. The FAIR Act seeks to restore the rights of innocent property owners, by requiring clear and convincing evidence of a persons guilt, rather than a mere preponderance of the evidence. The FAIR Act also provides indigent property owners counsel if they need it, no small issue considering the federal government has more than enough money and lawyers on hand to intimidate most Americans.

Civil asset forfeiture defies the very notion of limited, constitutionally restrained government. We encourage a bipartisan effort to rein in the abuses of civil asset forfeiture by working to pass the FAIR Act.

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End perverse incentives for seizing assets - Los Angeles Daily News - LA Daily News

by Eric Frederiksen | March 21, 2017

The Fifth Amendment to the United States Constitution protects American citizens from incriminating themselves, but it seems forgotten passwords dont always fall under that. The US Third Circuit Court of Appeals upheld a ruling of contempt from a lower court over a mans claimed inability to remember his drive-decryption password.

A computer, pair of iPhones, and two external drives belonging to the anonymous defendant were seized as part of a child pornography investigation. The court ruling states that the defendant voluntarily provided the password for his iPhones but refused to offer up the passwords for his Apple Mac Pro or external hard drives. Forensic analysts were able to recover the password for the computer, but not the drives. When asked to enter in the passwords for his drives, the defendant entered in a number of incorrect passwords. The judge, however, didnt believe the defendant, and it eventually came out that he did have the passwords and had chosen not to reveal them because of the devices contents.

The court already knew a bit about what it was getting into. In the process of analysis, those forensic analysts had discovered file signatures on the defendants computer that matched the hash values of known child pornography files. They also had testimony from the defendants sister that he had shown her said files on the external hard drives. The court ended up ruling that being forced to produce a password did not count as testimony and, as a result, did not fall under the protection of the Fifth Amendment.

In this particular case, the court had compelling evidence to force the issue, and this is the kind of situation where we want to see justice done, but it could potentially set a dangerous precedent. The Electronic Frontier Foundation toldThe Register that any time suspects are forced to disclose contents of their mind, thats enough to trigger the Fifth Amendment, end of story.

Meanwhile, other legal experts note that data encryption is now standard within many businesses, and an inability to force decryption makes these companies effectively immune from discovery and subpoenas.

The balance between personal privacy and pursuit of justice has never been murkier than it is in the current age of everything-encryption. There simply isnt as much physical evidence for investigators to pore over, and much of the digital evidence is locked up in encryption. At the same time, citizens have a right to privacy and to protecting that privacy.

The EFFs senior staff attorney Mark Rumold expects this question to climb its way up the courts and said he wouldnt be surprised to see the issue make its way to the Supreme Court.

Excerpt from:
The Fifth Amendment may not protect our passwords, US Court of Appeals says - TechnoBuffalo

I have blogged a few times about a pending 3rd Circuit case on the Fifth Amendment standard for compelling the decryption of a hard drive. As I explained, the case presents an opportunity to weigh in on the 11th Circuits standard in a similar case that I think was erroneous. The 3rd Circuit handed down its decision this morning, United States v. Apple Mac Pro Computer. The court ruled for the government without resolving which standard applies. In a footnote, however, the court hinted that it disagreed with the 11th Circuit and would have adopted the standard that I think is right if it had to choose. Its just dicta, but its pretty strongly worded dicta.

I explained the legal issue in glorious detail in my prior post, but heres a quick overview. If the foregone conclusion doctrine applies, the Fifth Amendment privilege against self-incrimination doesnt bar the act of compelling entering in a password. The question is: What does the government need to show to establish a foregone conclusion? The 11th Circuit had held in its prior case that the government needs to show that the government knows with reasonable particularity what files are on the encrypted device. In my view, thats wrong. The foregone conclusion doctrine applies if the government can show that it knows that the subject knows the passcode.

The 3rd Circuit held that the Fifth Amendment issue was not preserved below, but that even if it should be reached it would not be plain error to say that there was no Fifth Amendment privilege:

Even if we could assess the Fifth Amendment decision of the Magistrate Judge, our review would be limited to plain error. See United States v. Schwartz, 446 F.2d 571, 576 (3d Cir. 1971) (applying plain error review to unpreserved claim of violation of privilege against self-incrimination). Does arguments fail under this deferential standard of review.

The 11th Circuits ruling was distinguishable on its facts:

Unlike [the 11th Circuits case], the Government has provided evidence to show both that files exist on the encrypted portions of the devices and that Doe can access them. . . . Based on these facts, the Magistrate Judge found that, for the purposes of the Fifth Amendment, any testimonial component of the production of decrypted devices added little or nothing to the information already obtained by the Government. The Magistrate Judge determined that any testimonial component would be a foregone conclusion. The Magistrate Judge did not commit a clear or obvious error in his application of the foregone conclusion doctrine.

The 3rd Circuit then dropped this very intriguing footnote, with a paragraph break added by me:

It is important to note that we are not concluding that the Governments knowledge of the content of the devices is necessarily the correct focus of the foregone conclusion inquiry in the context of a compelled decryption order. Instead, a very sound argument can be made that the foregone conclusion doctrine properly focuses on whether the Government already knows the testimony that is implicit in the act of production. In this case, the fact known to the government that is implicit in the act of providing the password for the devices is I, John Doe, know the password for these devices. Based upon the testimony presented at the contempt proceeding, that fact is a foregone conclusion.

However, because our review is limited to plain error, and no plain error was committed by the District Court in finding that the Government established that the contents of the encrypted hard drives are known to it, we need not decide here that the inquiry can be limited to the question of whether Does knowledge of the password itself is sufficient to support application of the foregone conclusion doctrine.

Theres a lot in that footnote that the government can use in future cases. Its dicta, but its very strong dicta. The issue will live for another day without a circuit split. But given that I think the footnote is correct, I hope it will be followed in future cases.

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Third Circuit doesn't resolve standard for forced decryption under the Fifth Amendment - Washington Post

Malwarebytes

A US man has lost an appeal over his refusal to decrypt hard drives in a case law enforcement says involves child pornography.

The unnamed man has been held by US police for over 18 months without criminal charges.

The suspect's lawyer has argued that he should not have to hand over his passwords due to the Fifth Amendment, which protects US citizens from incriminating themselves.

However, a US judge disagrees.

According to court documents released this week (.PDF) by the US Third Circuit Court of Appeals, during an investigation relating to child pornography on the Internet, a raid in 2015 on the man's home resulted in the seizure of an Apple iPhone 5S and an Apple Mac Pro together with two attached Western Digital external hard drives.

All of the devices were protected with encryption software, of which law enforcement was originally unable to break.

While the suspect gave police a password for the iPhone, he refused to decrypt the Mac Pro and the hard drives.

Forensic investigators were able to discover the password for the Mac which contained images of a "pubescent girl in a sexually provocative position," -- including sexual content relating to Doe's four and six-year-old nieces.

According to prosecutors, browser logs that revealed John Doe had visited websites related to child pornography were also found.

The forensic team was also able to learn that the man had downloaded thousands of files believed to be child porn. Although the team says these files have been downloaded due to their hash values, the files themselves were not stored on the MacBook Pro -- but rather, the inaccessible hard drives.

The suspect's sister also gave testimony to police, alleging that Doe had shown her "hundreds" of child pornographic images from the hard drives, alongside "videos of children who were nude and engaged in sex acts with other children."

However, law enforcement failed to access the external hard drives. Doe refused to hand over the passwords required to decrypt the drives -- at one point claiming to have forgotten them -- and so the court found him in contempt in 2015 for refusing to comply and "produce several seized devices in a fully unencrypted state."

The man has remained behind bars ever since, which currently stands at over 18 months.

Doe originally filed with the US Magistrate Judge to quash the order, arguing that decrypting the devices would violate his Fifth Amendment rights against self-incrimination. This motion was denied, leading to the fresh appeal.

"The Magistrate Judge acknowledged Doe's Fifth Amendment objection but held that, because the Government possessed Doe's devices and knew that their contents included child pornography, the act of decrypting the devices would not be testimonial for purposes of the Fifth Amendment privilege against self-incrimination," the court documents read.

Doe now argues that he should not be held in contempt as the District Court also lacks the jurisdiction to issue the order to decrypt his devices.

Speaking to the BBC, Keith Donoghue, a federal defender representing John Doe said the rejected appeal is "disappointing."

"[We are] studying the decision to determine what further review it may be appropriate to seek," Donoghue said. "The fact remains that the government has not brought charges and our client has now been in custody for nearly 18 months based on his assertion of his constitutional right against self-incrimination."

The Electronic Frontier Foundation (EFF) has filed an amicus brief in this case, arguing against compelling someone to reveal their passwords. In an interview, EFF senior staff attorney Mark Rumold told The Register that "any time suspects are forced to disclose the contents of their mind, that's enough to trigger the Fifth Amendment, end of story."

Excerpt from:
US man loses appeal in child porn encrypted device legal case ... - ZDNet

Lexington Herald Leader

Kentucky extends Calipari, Stoops contracts two more years Lexington Herald Leader It is the fifth amendment to Calipari's contract in his time at Kentucky, which started in 2009. Aside from the aforementioned extension, there is a mandated compensation review in Calipari's contract for June of 2022. At that time, UK's athletics ... Calipari, Stoops sign two-year extensionsWTVQ Calipari, Stoops contracts extendedThe Courier-Journal all 34 news articles »

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Kentucky extends Calipari, Stoops contracts two more years - Lexington Herald Leader