by David Kravets
Ars Technica / 2017-02-12 10:02
Francis Rawls, a former Philadelphia police sergeant, has been in the Philadelphia Federal Detention Center for more than 16 months. His crime: the fired police officer has been found in contempt of court for refusing a judge’s order to unlock two hard drives the authorities believe contain child pornography. Theoretically, Rawls can remain jailed indefinitely until he complies.
The federal court system appears to be in no hurry to resolve an unresolved legal issue: does the Fifth Amendment protect the public from being forced to decrypt their digital belongings? Until this is answered, Rawls is likely to continue to languish behind bars. A federal appeals court heard oral arguments about Rawls’ plight last September. So far, there’s been no response from the US 3rd Circuit Court of Appeals, based in Philadelphia.
Rawls was thrown in the slammer on September 30, 2015 "until such time that he fully complies" (PDF) with a court order to unlock his hard drives. A child-porn investigation focused on Rawls when prosecutors were monitoring the online network, Freenet. They executed a search warrant in 2015 at Rawls’ home. The authorities say it’s a "foregone conclusion" that illicit porn is on those drives. But they cannot know for sure unless Rawls hands them the alleged evidence that is encrypted with Apple’s standard FileVault software.
His plight is not garnering public sympathy. Men suspected of possessing child pornography never do. But his case highlights a vexing legal vacuum in this digital era, when encryption is becoming part of the national discussion. For years, both Apple and Microsoft have offered desktop users the ability to turn on full disk encryption. And data on Android and Apple mobile phones can easily be encrypted.
Rawls’ attorney, Federal Public Defender Keith Donoghue, declined comment for this story. But he has argued in court that his client is being "held without charges" (PDF) and that he should be released immediately.
In winning the contempt-of-court order, the authorities cited a 1789 law known as the All Writs Act to compel (PDF) Rawls to decrypt—and he refused. 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 the authorities paid a reported $1 million for a hack.
The reason why Rawls is idling behind bars without charges is twofold: first, the nation’s appellate courts have no deadlines on when they must issue an opinion. And second, the Supreme Court has never addressed the compelled decryption issue.
The Supreme Court in 2000, however, ruled that demanding too much assistance from a suspect is unconstitutional because it would be akin to "telling an inquisitor the combination of a wall safe." However, the closest federal appellate case on point was decided by the 10th US Circuit Court of Appeals in 2012. That court, based in Denver, said a bank-fraud defendant must decrypt her laptop. But that ruling wasn’t enforced because prosecutors obtained the password elsewhere.
At issue in the decryption battle is the Fifth Amendment. At its core, it says people cannot be compelled to testify against themselves. But that is the real-world view. When it comes to the virtual world, things change—at least insofar as the government is concerned. The government claims that Rawls isn’t being ordered to testify against himself and that he isn’t even being ordered to produce his passwords.
Rawls, the government argues, (PDF) "repeatedly asserts that the All Writs Act order requires him to divulge his passcodes, but he is incorrect: the order requires no testimony from [Rawls], and he may keep his passcodes to himself. Instead, the order requires only that [Rawls] produce his computer and hard drives in an unencrypted state."
The Electronic Frontier Foundation told the court in a friend-of-the-court brief (PDF) that "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."
When the appeals court finally rules on Rawls’ plight, it won’t be the final word on the topic. That’s because the nation’s circuit courts of appeal are not obligated to follow the decisions of their sister circuits. This means uncertainty over this issue could linger until the nation’s highest court weighs in.
All the while, a jailed man named Francis Rawls, who the authorities believe is hiding kid smut, remains the poster child surrounding the debate on forced decryption.