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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.
The 3-0 decision (PDF) by the 3rd US Circuit Court of Appeals means that the suspect, Francis Rawls, likely will remain jailed indefinitely or until the order (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 because the 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 know there's child porn on the drives, so Rawls' constitutional rights aren't compromised.
[...] 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."
-- submitted from IRC
(Score: 3, Insightful) by Bot on Wednesday March 22 2017, @08:57AM (12 children)
They say they KNOW there is CP? if they know there is CP, they fucked up by not collecting evidence and relying on the suspect willingness to fuck himself over. Not surprisingly, you get to a stalemate.
Besides, having identified a suspect I'd rather have examined real children around him rather than jpegs in his encrypted drive, but that's only the naive me.
Account abandoned.
(Score: 1, Interesting) by Anonymous Coward on Wednesday March 22 2017, @09:21AM
(Score: 2) by tfried on Wednesday March 22 2017, @09:40AM (6 children)
From skimming the decision, it does look like they have pretty solid reason to believe there is CP on these drives. That includes eyewitness testimony, and - most damning - the "Forensic examination also disclosed that Doe 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." Pretty hard to argue with the latter.
So, I wouldn't see anything wrong with convicting the guy for possession of CP, based on that evidence. But yeah, the only real point of insisting on the passwords would probably be to try to find even more (CP or other things) than already known. And fifth amendment would appear as a very valid defence against that.
(Not going to engage in a discussion of whether or not mere possession of CP should be illegal. That's something for lawmakers, not the courts to decide on, anyway.)
(Score: 3, Informative) by Anonymous Coward on Wednesday March 22 2017, @11:37AM (3 children)
(Score: 0) by Anonymous Coward on Wednesday March 22 2017, @03:31PM
yes, they are a bunch of self righteous pigs. this is what they do.
(Score: 3, Interesting) by tfried on Wednesday March 22 2017, @04:48PM
I totally agree that this is the path of action that they should be taking. As to why they don't, I imagine it's:
a) They suspect that there is much more to find on those drives. Well, they have the right to do that kind of poking in the semi-dark (valid search warrant), but they really cannot ask the defendant to help them with it (Fifth Amendment).
b) They are afraid that a judge or jury will not understand what a hash is. That fear does not justify their approach, but to their credit, one may acknowledge that it may not be entirely baseless.
(Score: 1) by toddestan on Thursday March 23 2017, @04:51AM
Most likely they want to set a precedent that they can legally demand that devices be unlocked and passwords handed over. They tried the terrorism angle with the shooter in California, now they are going to try the pedophile angle on this guy. It doesn't matter that they already have the evidence they need, as actually prosecuting this guy isn't the goal here.
(Score: 0) by Anonymous Coward on Wednesday March 22 2017, @11:49AM
IIRC freenet had a mode in which all you downloaded was encrypted with a key in RAM or something lilke that, right? Besides, all activity done on a live linux system may reside only in RAM. He downloaded X therefore he has X on his HDs is a bit of a stretch, especially if you count a single GET request as a download. Hopefully the prosecutors know what they are doing.
(Score: 2) by dry on Thursday March 23 2017, @05:53AM
Actually in a Constitutional system, the courts do decide if any laws such as practicing free speech or a free press is constitutional and if not, they should strike down the law. The the law makers then rewrite the law or amend the constitution. Unluckily the American courts keep falling down on the job to the degree that most people accept a watered down version of the Bill of Rights.
(Score: 1, Funny) by Anonymous Coward on Wednesday March 22 2017, @09:43AM (3 children)
All child pronography already exist in a qquantum state. Quantum computers will be used by connisuers of child porn to extract the nude child ground state from an arbitrary soize array of pixels. If the suspect filled his hard drive with ranodm data there already be cp on the drive. Since he refused to give up the passwords it is Shrdocinger's encrypted child porn.
(Score: 0) by Anonymous Coward on Wednesday March 22 2017, @01:43PM
Fap fap fape.
(Score: 1) by tftp on Thursday March 23 2017, @05:10AM
You don't have to go quantum on this. A simple XOR operation on any cyphertext will reveal any plaintext (of the same length) that you want - as long it's you who is providing the key. In essence, you can take the Bible and XOR it with a specially crafted stream that converts it into whatever nasty video you desire.
The victim can claim that *his* key is truer, and it returns an entirely innocent set of Shakespeare's plays. But there is no way to prove one vs. the other, and the jury is likely to believe the nasty story.
(Score: 2) by marcello_dl on Thursday March 23 2017, @03:22PM
> All child pronography already exist in a qquantum state.
Your spelling, too.