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posted by on Wednesday March 22 2017, @08:19AM   Printer-friendly
from the better-treatment-than-if-he's-guilty dept.

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


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  • (Score: 5, Insightful) by bradley13 on Wednesday March 22 2017, @09:21AM (5 children)

    by bradley13 (3053) on Wednesday March 22 2017, @09:21AM (#482619) Homepage Journal

    This is a particularly bizarre case, for a couple of reasons.

    - First, it makes use of the "All Writs Act", which is a frightening (and surely unconstitutional) law that lets the government demand that a person or company take some action that the government wants, without any compensation or reimbursement.

    - Second, the action demanded is one that would have him provide the government with evidence, so that the government can prosecute him. That's got to be at least borderline on the "self-incrimination" side of things.

    - Third, in this appeal, the government convinced the court that it already knows what is on the hard drives. Hence, the guy will not be incriminating himself by doing what the government demands. But, if they already have proof of what's on the disks, then they don't need him to unencrypt them, do they? IANAL, but it's really weird that the court accepted this argument.

    - Fourth: Why doesn't the guy just say he has forgotten the password after all this time? And what, exactly, would the government do in that case?

    This looks to be a case where some prosecutor has his pride on the line. Ethics and justice be damned, pull out all the stops.

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  • (Score: 4, Informative) by romlok on Wednesday March 22 2017, @11:34AM (2 children)

    by romlok (1241) on Wednesday March 22 2017, @11:34AM (#482655)

    the government convinced the court that it already knows what is on the hard drives. Hence, the guy will not be incriminating himself by doing what the government demands. But, if they already have proof of what's on the disks, then they don't need him to unencrypt them, do they?

    I came to write the same thing. If they truly know, then they must already have evidence, and can use that evidence to secure a conviction in court. If they don't have evidence, then all they have is suspicion, not knowledge.

    Why doesn't the guy just say he has forgotten the password after all this time? And what, exactly, would the government do in that case?

    AIUI, that's been his story since the beginning. So you're now seeing exactly what the government does in that case: 17 months and counting.

    • (Score: 3, Interesting) by Immerman on Wednesday March 22 2017, @02:31PM

      by Immerman (3985) on Wednesday March 22 2017, @02:31PM (#482721)

      You forgot option 3: they already have evidence that they acquired illegally, or by using secret tools whose existence they're not allowed to reveal, making the evidence inadmissible in court.

      Now, why an honest judge would allow such shenanigans I don't know, but the list of deeply honest judges seems awfully short some days.

    • (Score: 3, Interesting) by Gaaark on Wednesday March 22 2017, @10:52PM

      by Gaaark (41) on Wednesday March 22 2017, @10:52PM (#482980) Journal

      My guess is that they KNOW what is on the hd, they want the info it contains on WHERE he got the evidence (pics, videos) so they can incriminate other as well.

      --
      --- Please remind me if I haven't been civil to you: I'm channeling MDC. ---Gaaark 2.0 ---
  • (Score: 0) by Anonymous Coward on Wednesday March 22 2017, @05:22PM

    by Anonymous Coward on Wednesday March 22 2017, @05:22PM (#482838)

    He did say he forgot. The judge says she doesn't buy that he forgot and that prison time will jog his memory eventually.

  • (Score: 2) by Runaway1956 on Wednesday March 22 2017, @08:22PM

    by Runaway1956 (2926) Subscriber Badge on Wednesday March 22 2017, @08:22PM (#482924) Journal

    - Third, in this appeal, the government convinced the court that it already knows what is on the hard drives.

    That is a strong point. If they atually KNOW what is on the hard drive, then they have alternative sources for evidence. They don't NEED the hard drives decrypted to make a case. They can work up all that other evidence, which convinced everyone involved that there is illegal stuff on the drives. They can prosecute with all that other evidence, and they should win at trial.

    What are they keeping secret? What is more important to them, than the conviction of a pedo? It's something pretty good - like, maybe the methods they used to track him down.

    Either that, or this is a showcase trial, being used to establish that the government has the "right" to examine all hard drives. I'm sure that win or lose, the government is using this case to convince lawmakers that government requires access to all encrypted drives. One more bit of data used to twist Congress view of encryption.