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The suspect has refused to comply with a court order to unlock two encrypted hard drives. Photograph: Focke Strangmann/EPA

A former Philadelphia police officer who has spent 17 months in jail will remain there indefinitely unless he agrees to unlock two encrypted hard drives. The suspect, Francis Rawls, has so far refused to comply with the court order, citing the fifth amendment, which protects him from self-incrimination.

The case has become a battleground for civil liberties campaigners, who believe that citizens should have the right to protect their critical information and to be protected from self-incrimination. However, the suspected nature of the encrypted content makes for a challenging ethical quandary: those hard drives are believed to contain images depicting child sexual abuse. In order to stand up for the rights of citizens across the US, organizations such as the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU) must defend a suspected pedophile.

According to court documents obtained by Ars Technica, the case started in 2015, when the Delaware County criminal investigations unit got a warrant to search Rawls home after investigating his online activity. Officers seized two iPhones, an Apple Mac Pro and two external hard drives and got a warrant to examine their contents. Rawls refused to give up the passwords required to decrypt the hard drives, which were encrypted with Apples FileVault software.

That didnt stop digital forensics experts from finding incriminating content, including an image of a pubescent girl in a sexually provocative position and logs showing the device had been used to visit sites with titles commonly used in child exploitation. The forensic investigation also revealed that Rawls had downloaded thousands of files known by their hash values to be child abuse images, although the files themselves couldnt be accessed. The suspects sister also told police that she had seen hundreds of images of child sexual abuse on the hard drives.

In August 2015, a court issued a decryption order, compelling the suspect to unlock the encrypted devices. He unlocked one of the iPhones, but said he could not remember the passwords to the encrypted hard drives an assertion the court rejected based on testimony from his sister, who said she had seen him enter his passwords from memory. In September, a district court held the suspect in contempt of court for refusing to comply with the decryption order. On Monday, the third US circuit court of appeals upheld the decision.

Rawls remains imprisoned without charges (for much of the time in solitary confinement) in Philadelphias federal detention center until he complies with the court order.

Theoretically, he could be held in jail for contempt forever ... until hes dead, said Dan Terzian, a lawyer from Duane Morris.

Given the powerful evidence here that the defendant knows the passwords, he holds the key to his own cell. It is his own refusal to provide the evidence covered by the search warrant that is keeping him there, added Adam Klein, a senior fellow at the Center for a New American Security.

In ruling against Rawls, the court of appeals has decided that his constitutional rights against being forced to self-incriminate are not being breached. This is because of an exception to the fifth amendment known as a foregone conclusion, which is when authorities already know something exists in this case, police say they know there are child abuse images on the hard drives because they have a witness who saw the files (Rawls sister). The EFF and ACLU argued in an amicus brief that they did not believe the government could demonstrate with reasonable particularity that it knew the documents existed.

Why dont they go to trial without the files allegedly stored on the encrypted devices? It comes down to reasonable doubt.

The government wants every piece of evidence they can get to show the jurors what a disgusting person the defendant is, said Terzian, who has previously attended a trial where no actual images were presented as evidence in a case addressing child abuse images.

Witnesses said he was searching for it, but he was found not guilty because the defence convincingly argued that if there was child porn, the government would have shown it, he said.

There is also the issue of identifying child victims of sexual abuse and their attackers.

In her essay on the topic, published in January, the Brookings Institution fellow Susan Hennessy explained the immediate and real problem:

Whereas with respect to terrorism cases we often end up hypothesizing how law enforcement and policy makers will respond to the next big attack, in the child exploitation context the next attack is happening literally every day.

Children as young as infants and toddlers are raped or otherwise abused on camera; those images are routinely shared among a community of offenders; and those offenders deploy technologies that make it difficult or impossible to discover the perpetrators, prosecute their crimes, or identify and rescue victims.

Hennessy proposes that instead of forcing technology companies to create backdoors for law enforcement, lawful hacking in which the government exploits vulnerabilities in encrypted systems and regulation should be more broadly applied.

The suspects attorney, Keith Donoghue, a public defender, said he was disappointed in the ruling and was studying the decision to determine the next course of action.

The fact remains that the government has not brought charges. Our client has now been in custody for 18 months based on his assertion of his fifth amendment rights against self-incrimination, he said.

Link:
Man jailed until he unlocks encrypted hard drives in child abuse images case - The Guardian

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.

More here:
Third Circuit doesn't resolve standard for forced decryption under the ... - Washington Post

Thomas Trutschel/Getty Images

On Monday, a US federal appeals court sided against a former Philadelphia police officer who has been in jail 17 months because he invoked his Fifth Amendment right against compelled self-incrimination. He had refused to comply with a court order commanding him to unlock two hard drives the authorities say contain child porn.

Francis Rawls

The 3-0 decision(PDF) by the 3rd US Circuit Court of Appealsmeans that the suspect, Francis Rawls, likely will remain jailed indefinitely or until theorder (PDF) finding him in contempt of court is lifted or overturned. However, he still can comply with the order and unlock two FileVault encrypted drives connected to his Apple Mac Pro. Using a warrant, authorities seized those drives from his residence in 2015. While Rawls could get out from under the contempt order by unlocking those drives, doing so might expose him to other legal troubles.

In deciding against Rawls, the court of appeals found that the constitutional rights against being compelled to testify against oneself were not being breached. That's becausethe appeals court, like the police, agreed that the presence of child porn on his drives was a "foregone conclusion." The Fifth Amendment, at its most basic level, protects suspects from being forced to disclose incriminating evidence. In this instance, however, the authorities said they already knowthere's child porn on the drives, so Rawls' constitutional rights aren't compromised.

The Philadelphia-based appeals court ruled:

Forensic examination also disclosed that Doe [Rawls] had downloaded thousands of files known by their "hash" values to be child pornography. The files, however, were not on the Mac Pro, but instead had been stored on the encrypted external hard drives. Accordingly, the files themselves could not be accessed.

The court also noted that the authorities "found [on the Mac Book Pro] one image depicting a pubescent girl in a sexually suggestive position and logs that suggested the user had visited groups with titles common in child exploitation." They also said the man's sister had "reported" that her brother showed him hundreds of pictures and videos of child pornography. All of this, according to the appeals court, meant that the lower court lawfully ordered Rawls to unlock the drives.

"The Magistrate Judge did not commit a clear or obvious error in his application of the foregone conclusion doctrine," the court ruled. "In this regard, the Magistrate Judge rested his decision rejecting the Fifth Amendment challenge on factual findings that are amply supported by the record."

The suspect's attorney, Federal Public Defender Keith Donoghue, was disappointed by the ruling.

"The fact remains that the government has not brought charges," Donoghue said in a telephone interview. "Our client has now been in custody for almost 18 months based on his assertion of his Fifth Amendment right against compelled self-incrimination."

A child-porn investigation focused on Rawls when the authorities were monitoring the online network, Freenet.

The decision from the appeals court comes as encryption is becoming more common on mobile phones and computers. What's more, encryption has seemingly become part of the national political discussion concerning whether governments should demand that companies bake backdoors into their encrypted products so that authorities can access content on encrypted devices.

The Supreme Court has never ruled on the forced decryption issue. A different federal appeals court, the 10th US Circuit Court of Appeals based in Denver, ruled in 2012 that a bank-fraud defendant must decrypt her laptop. The order wasn't enforced, however, as the authorities eventually accessed the laptop without her assistance.

The contempt-of-court order against Rawls was obtained by authorities citing the 1789 All Writs Act. The All Writs Act was the same law the Justice Department asserted in its legal battle with Apple, in which a magistrate judge ordered Apple to produce code to enable the FBI to decrypt the iPhone used by one of two shooters who killed 14 people at a San Bernardino County government building. The government dropped the case when authorities paid a reported $1 million for a hack.

"Unless the suspect unlocks the drives or a court unwinds the order, he will remain jailed," Marc Rumold, an Electronic Frontier Foundation staff attorney who filed a friend-of-the-court brief in the case, said in a telephone interview.

In that brief, the EFF said "compelled decryption is inherently testimonial because it compels a suspect to use the contents of their mind to translate unintelligible evidence into a form that can be used against them. The Fifth Amendment provides an absolute privilege against such self-incriminating compelled decryption."

The authorities, however, said no testimony was needed from Rawls. Rather, they said, (PDF) "he can keep his passwords to himself" and "produce his computer and hard drives in an unencrypted state."

Read the rest here:
Man jailed indefinitely for refusing to decrypt hard drives loses appeal - Ars Technica

WASHINGTON -- This week, the Senate Judiciary Committee will question Neil Gorsuch about the judiciary's role. Herewith some pertinent questions:

-- Lincoln's greatness began with his recoil from the 1854 Kansas-Nebraska Act, which empowered residents of those territories to decide whether to have slavery. The act's premise was that "popular sovereignty" -- majorities' rights -- is the essence of the American project. Is it, or is liberty?

-- Justice Robert Jackson wrote, "The very purpose of a Bill of Rights was to ... place [certain subjects] beyond the reach of majorities." Was that not also the purpose of the 14th Amendment's Privileges and Immunities Clause? It says: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." Was this amendment's purpose to ensure that the natural rights of all citizens would be protected from abridgement by their states?

-- If so, was the court wrong in the 1873 Slaughterhouse Cases? It essentially erased the Privileges and Immunities Clause, holding that it did not secure natural rights (e.g., the right to enter contracts and earn a living), for the protection of which, the Declaration of Independence says, governments are instituted.

-- Chief Justice John Roberts says the doctrine of stare decisis -- previous court decisions are owed respect -- is not an "inexorable command." The ruling in Plessy v. Ferguson (1896), upholding racial segregation in separate but equal facilities, has been undone. Should the Slaughterhouse Cases ruling be revisited?

-- The court, without warrant from the Constitution's text or history, has divided Americans' liberties between those it deems "fundamental," such as speech and association, and others, many pertaining to economic activity and the right to earn a living, that are inferior. Abridgements of the latter have been given less exacting judicial scrutiny. The court calls this "rational basis" scrutiny; it should be called "conceivable basis" scrutiny. If a legislature asserts, or the court can imagine, a rational basis for the abridgement, it stands. Do you think judges should decide which liberties to protect or neglect? Should courts examine evidence of whether economic regulations are related to public health and safety or merely reflect rent seeking by economic interests?

-- The Ninth Amendment says: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Robert Bork said this is akin to an "inkblot" on the Constitution that judges should ignore. Do you agree? How can judges be faithful to this amendment? Was Madison correct that it should dispose us against a latitudinarian interpretation of Congress' powers? Is the Ninth Amendment pertinent to, say, the right to earn a living free from unreasonable licensure requirements or other barriers to entry into an occupation?

-- Other than a law that abridges a liberty enumerated in the Bill of Rights, are there limits to Congress' power over interstate commerce?

-- The Fifth Amendment says no property shall be taken "for public use" without just compensation. In the 2005 Kelo case, the court upheld a city's seizure of private property not to facilitate construction of a public structure or to cure blight, but for the "public use" of transferring it to a wealthier private interest that would pay more taxes. Did the court err?

-- Madison worried that Congress would draw "all power into its impetuous vortex." For many decades, however, our centrifugal Congress has been spinning off essentially legislative powers, delegating them to presidents and executive agencies. The Constitution says "All legislative powers herein granted shall be vested in a Congress." Should the court enforce limits to Congress' power to delegate its powers?

-- Citizens United held that unions and corporations, particularly incorporated nonprofit advocacy groups, can engage in unregulated spending that is not coordinated with candidates or campaigns. Was the court correct that Americans do not forfeit their First Amendment rights when they come together in incorporated entities to speak collectively?

-- Is it constitutional for Congress, by regulating political spending, to control the quantity and timing of political speech?

-- You commendably believe that judges should adhere to the "original public meaning" of the Constitution's text. Would you feel bound to follow a previous court decision that did not evaluate evidence of original meaning and was, in your view, in conflict with it? If not, would you be elevating the views of judges over those of the Framers?

-- Oliver Wendell Holmes, a deferential, majoritarian jurist, said: "If my fellow citizens want to go to Hell I will help them. It's my job." Discuss.

George F. Will is a columnist for The Washington Post.

Follow this link:
Questions for Judge Gorsuch - Helena Independent Record

WASHINGTON -- This week, the Senate Judiciary Committee will question Neil Gorsuch about the judiciary's role. Herewith some pertinent questions:

-- Lincoln's greatness began with his recoil from the 1854 Kansas-Nebraska Act, which empowered residents of those territories to decide whether to have slavery. The act's premise was that "popular sovereignty" -- majorities' rights -- is the essence of the American project. Is it, or is liberty?

-- Justice Robert Jackson wrote, "The very purpose of a Bill of Rights was to ... place [certain subjects] beyond the reach of majorities." Was that not also the purpose of the 14th Amendment's Privileges and Immunities Clause? It says: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." Was this amendment's purpose to ensure that the natural rights of all citizens would be protected from abridgement by their states?

-- If so, was the court wrong in the 1873 Slaughterhouse Cases? It essentially erased the Privileges and Immunities Clause, holding that it did not secure natural rights (e.g., the right to enter contracts and earn a living), for the protection of which, the Declaration of Independence says, governments are instituted.

-- Chief Justice John Roberts says the doctrine of stare decisis -- previous court decisions are owed respect -- is not an "inexorable command." The ruling in Plessy v. Ferguson (1896), upholding racial segregation in separate but equal facilities, has been undone. Should the Slaughterhouse Cases ruling be revisited?

-- The court, without warrant from the Constitution's text or history, has divided Americans' liberties between those it deems "fundamental," such as speech and association, and others, many pertaining to economic activity and the right to earn a living, that are inferior. Abridgements of the latter have been given less exacting judicial scrutiny. The court calls this "rational basis" scrutiny; it should be called "conceivable basis" scrutiny. If a legislature asserts, or the court can imagine, a rational basis for the abridgement, it stands. Do you think judges should decide which liberties to protect or neglect? Should courts examine evidence of whether economic regulations are related to public health and safety or merely reflect rent seeking by economic interests?

-- The Ninth Amendment says: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Robert Bork said this is akin to an "inkblot" on the Constitution that judges should ignore. Do you agree? How can judges be faithful to this amendment? Was Madison correct that it should dispose us against a latitudinarian interpretation of Congress' powers? Is the Ninth Amendment pertinent to, say, the right to earn a living free from unreasonable licensure requirements or other barriers to entry into an occupation?

-- Other than a law that abridges a liberty enumerated in the Bill of Rights, are there limits to Congress' power over interstate commerce?

-- The Fifth Amendment says no property shall be taken "for public use" without just compensation. In the 2005 Kelo case, the court upheld a city's seizure of private property not to facilitate construction of a public structure or to cure blight, but for the "public use" of transferring it to a wealthier private interest that would pay more taxes. Did the court err?

-- Madison worried that Congress would draw "all power into its impetuous vortex." For many decades, however, our centrifugal Congress has been spinning off essentially legislative powers, delegating them to presidents and executive agencies. The Constitution says "All legislative powers herein granted shall be vested in a Congress." Should the court enforce limits to Congress' power to delegate its powers?

-- Citizens United held that unions and corporations, particularly incorporated nonprofit advocacy groups, can engage in unregulated spending that is not coordinated with candidates or campaigns. Was the court correct that Americans do not forfeit their First Amendment rights when they come together in incorporated entities to speak collectively?

-- Is it constitutional for Congress, by regulating political spending, to control the quantity and timing of political speech?

-- You commendably believe that judges should adhere to the "original public meaning" of the Constitution's text. Would you feel bound to follow a previous court decision that did not evaluate evidence of original meaning and was, in your view, in conflict with it? If not, would you be elevating the views of judges over those of the Framers?

-- Oliver Wendell Holmes, a deferential, majoritarian jurist, said: "If my fellow citizens want to go to Hell I will help them. It's my job." Discuss.

Go here to see the original:
GEORGE WILL: Here are questions senators should ask Gorsuch - Sioux City Journal