Man Who Refused to Decrypt Hard Drives Still in Prison After Two Years

[Mistame]

This will definitely go up to the Supreme Court. I sure hope for anyone living in the US they don't uphold it.

Agreed. Doing so completely invalidates the entire point of the 5th Amendment. Say buh-bye to privacy.

[cubby]

This case does not invalidate the 5th. If anything, it actually reinforces it.

After the inital arrest, Rawls plead the 5th. The state got a court order to turn over the password, and it was rejected on the grounds of the 5th. It was only after the state got a new court order based off the All Writs Act.

That is the key thing here. The All Writs Act bypasses the 5th, because it claims what they are requesting is a purely procedural matter. They can only do this if the state can prove that they won't gain any new information from the act of decryption, that what they will find is a "forgone conclusion". The states evidence in this case is one detective whose "best guess" is that one specific file may "possibly" be on the HD (quotations directly from the detective).

That is a really good point - the analysis from the 3rd using the 5th. Looking at it again, I tend to agree with you. The two part test is interesting. Looking at everything again, I think I would prefer to have the defense's case.

This will definitely go up to the Supreme Court. I sure hope for anyone living in the US they don't uphold it. Otherwise enjoy the aftermath.

I agree. It's a curious combination of privacy and assisting Law Enforcement Officers. I have to say the liberal side of me hopes the defense wins, but the parent side of me hopes the child abuser/pornographer loses.

I guess we'd have to go with the dispassionate side and hope the defense wins. Out of curiosity, if the state wins, what do you see the aftermath being? I know "loss of all privacy" might be the first answer, but that won't really happen, imo. I can see this being another chip off the privacy penumbra, however.

[Noradin]

No, they have to have some level of credible proof to go with it. I honestly hope the Judges are held to a higher standard than the Department of Veteran Affairs disability board or social security......

Crap, that really makes it sound worse....

So where is that proof that he does in fact still remember?

And I still do not agree with the notion that offering the encryption key is not incriminating himself.
It does not reflect the reality of the thing, just some precieved misconception of how it supposedly works.
If you have one "secure key" for one "piece of data" then the "key" and the "encrypted data" are interchangeable.
Both are useless on their own and both can be used as "key" or "data" as long as the other half is kept for the second role.
Thus, one could argue that they have the key, all they lack is the data it would decrypt, but giving them the data that only exists in his own mind at present would in fact be self-incimination if what they accuse him of is true.

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Except of course, that is quite literally what symmetric cryptography is.

No, it isn't.
It is not "one of those two is the key and the other is the door", it is "two pieces of information that can be combined to form something legible".

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Encryption is precisely that - a door with a key. And clueless people saying otherwise does not change that fact. And the courts agree. Which is why he's still behind bars.

Apparently the courts have no clue about how encryption works.
You could argue they have it backwards, they have drives with very long keys for the highly condensed information that supposedly exists in the head of the accused, which he claims he cannot remember anymore.

[Fugus]

So where is that proof that he does in fact still remember?

And I still do not agree with the notion that offering the encryption key is not incriminating himself.
It does not reflect the reality of the thing, just some precieved misconception of how it supposedly works.
If you have one "secure key" for one "piece of data" then the "key" and the "encrypted data" are interchangeable.
Both are useless on their own and both can be used as "key" or "data" as long as the other half is kept for the second role.
Thus, one could argue that they have the key, all they lack is the data it would decrypt, but giving them the data that only exists in his own mind at present would in fact be self-incimination if what they accuse him of is true.

I already said he has a major case for claiming he forgot now and would probably win if he pushed it.

And also pointed out earlier where I corrected myself and found where they ruled that to be the case that anything from memory automatically counts.

Post #361, on this same page.

[Noradin]

I already said he has a major case for claiming he forgot now and would probably win if he pushed it.

And also pointed out earlier where I corrected myself and found where they ruled that to be the case that anything from memory automatically counts.

Post #361, on this same page.

Fair enough, didn't show up when I read your other post.

[Tinykong]

At what point will "I forgot" become a legitimate excuse?

I don't remember passwords to things I changed ~90 days ago, let alone two years. Certainly there must be some period of time where the court will have to accept that he doesn't remember.

[A dot Ham]

Well this bit:

Is certainly wrong.

My thoughts exactly.

Hey we are going to arrest you, oh and by the way will you help us collect evidence to build our case against you? Seriously what fucking country is this?

and all of you in support of this are too wired up about the potential for "child porn". They don't have a case... bottom line. If they did he would have been convicted already... this is straight bullshit and if you consider yourself American you should be appalled.

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This case does not invalidate the 5th. If anything, it actually reinforces it.

After the inital arrest, Rawls plead the 5th. The state got a court order to turn over the password, and it was rejected on the grounds of the 5th. It was only after the state got a new court order based off the All Writs Act.

That is the key thing here. The All Writs Act bypasses the 5th, because it claims what they are requesting is a purely procedural matter. They can only do this if the state

I'm confused, how exactly does it reinforce it by bypassing it?

The All Writs Act is a United States federal statute, codified at 28 U.S.C. § 1651, which authorizes the United States federal courts to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."

I don't think that's agreeable with the 5th or 14th. What you have here is a judge who has his panties in a bunch because he is bound by the laws he is trying to uphold. Sometimes the criminals win... means we need better tools... not to bend or breaks existing laws (laws upon which this country was founded) to exact justice on some would be criminal.

[ghotihook]

My thoughts exactly.

Hey we are going to arrest you, oh and by the way will you help us collect evidence to build our case against you? Seriously what fucking country is this?

and all of you in support of this are too wired up about the potential for "child porn". They don't have a case... bottom line. If they did he would have been convicted already... this is straight bullshit and if you consider yourself American you should be appalled.

That's exactly my thoughts. I think what they have done already is corrupt as fuck and should be completely illegal. They can't force you to tell them your password because they have suspicions.

Also, if it's true that he has child porn, I hope he rots in hell...

[Faroth]

Got to love all these armchair Supreme Court Justices in here.

Completely ignore the hard drive. It is 100% immaterial to him being in jail. He is in jail for refusing to obey a valid court order. There is no innocent until proven guilty or need to prove reasonable doubt because he has already proven himself guilty by noncompliance. Unless he's being tortured, having his biological requirements ignored, or being kept in solitary confinement he is not having cruel and unusual punishment inflicted upon him. Also the Fifth Amendment does not apply to him because, as the article specifically stated, it only applies to witnesses. He is not a witness.

He's also not on trial. So he's not a defendant. He's not a witness.

So basically he's serving a life sentence because he's refusing (or per his claims, can't) unlock a hard drive? Is that an accurate description?

[cubby]

Apparently the courts have no clue about how encryption works.
You could argue they have it backwards, they have drives with very long keys for the highly condensed information that supposedly exists in the head of the accused, which he claims he cannot remember anymore.

They more than likely do not - so shitty analogies like key/door at the best we can hope for. I worked for a short while in IP law and discovered that the Federal Circuit bench that rules on some of these issues (outside of the Patent courts) usually have no clue as to what they are ruling on (or didn't, when I was studying it) and mostly relied on their young clerks to explain the technical issues, which them themselves had to learn.

[Krastyn]

I'm confused, how exactly does it reinforce it by bypassing it?

Because they specifically laid out the fact that the only way you can bypass it is if you already know what's been encrypted. They can't ask you to unlock it on a whim. They have to specifically know what's inside.

How the state was able to prove that in this case is beyond me based on the evidence released, and the defence statements.

[cubby]

He's also not on trial. So he's not a defendant. He's not a witness.

So basically he's serving a life sentence because he's refusing (or per his claims, can't) unlock a hard drive? Is that an accurate description?

Correct. He's voluntarily serving a potential life sentence by refusing the Court's order. Because he refuses to unlock a hard drive. The reasons why he's refusing are probably interesting, but are immaterial (unfortunately - child abuser/pornographer).

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Because they specifically laid out the fact that the only way you can bypass it is if you already know what's been encrypted. They can't ask you to unlock it on a whim. They have to specifically know what's inside.

How the state was able to prove that in this case is beyond me based on the evidence released, and the defence statements.

I know I started out on the other side of this, but I definitely see your point. It's possible that there is other evidence and/or information not available to the public that is driving this ruling. Based on rulings outside the 3rd Circuit, I'm surprise they ruled this way at all. It could be they want this asshat (child abuser/pornographer) in prison, and just needed a legal excuse they could back to do it.

Which makes for terrible law, even if the result is a good thing.

[zlygork]

I am not specialist, but unless he used some military level encryption on his hard drive...Couldn't someone have accessed it in these two years?

[A dot Ham]

Because they specifically laid out the fact that the only way you can bypass it is if you already know what's been encrypted. They can't ask you to unlock it on a whim. They have to specifically know what's inside.

How the state was able to prove that in this case is beyond me based on the evidence released, and the defence statements.

Shouldn't that then be sufficient evidence for a conviction?

Lets assume for a second that he had something in place that wiped or destroyed the hard drive upon entering the wrong password. Would we be having the same discussion? Would it still matter to have that hard drive opened with its contents destroyed?

Also holding someone indefinitely for such a petty act of non-compliance... (essentially a life sentence) sounds a lot like cruel and unusual punishment. 8th amendment violation.

[Noradin]

Correct. He's voluntarily serving a potential life sentence by refusing the Court's order. Because he refuses to unlock a hard drive. The reasons why he's refusing are probably interesting, but are immaterial (unfortunately - child abuser/pornographer).

Voluntarily?
Do you have proof that he remembers what they are asking for then?

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Also holding someone indefinitely for such a petty act of non-compliance... (essentially a life sentence) sounds a lot like cruel and unusual punishment. 8th amendment violation.

Especially since they cannot prove that it is an act of non-compliance to do something within his means.

[cubby]

Voluntarily?
Do you have proof that he remembers what they are asking for then?

Nope - good catch.

But it's awfully convenient that he "forgot" right after law enforcement seized the hard drive. Circumstantially, the evidence is against him on that issue. Curious case - I know I'm disagreeing with myself from earlier, but I would be surprised if SCOTUS let this stand.

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Especially since they cannot prove that it is an act of non-compliance to do something within his means.

Don't get too high on the horse - it's his data, on his drive - that he encrypted. Claiming "I forgot" is one of the most frequent lies law enforcement runs into. I hear what you're saying, but don't just ignore the other side as if it didn't have merit.

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Also holding someone indefinitely for such a petty act of non-compliance... (essentially a life sentence) sounds a lot like cruel and unusual punishment. 8th amendment violation.

The courts have never looked at disobeying an order they issued as "petty" - and legally neither should anyone else.

[Venant]

Correct. He's voluntarily serving a potential life sentence by refusing the Court's order.

That's like claiming you are 'voluntarily staying in your house' when it is surrounded by people who will shoot you as soon as you step outside. You cannot voluntarily serve a life sentence if part of that includes you being shot if you attempt to leave the prison. The key point that makes it involuntary is the coercion imposed by the state, you cannot voluntarily act while under coercion.

While it does seem like the suspect here may have committed heinous acts, its a problem for everybody if judges can throw people in prison forever without charges. What happens if they put somebody in this situation who does not know the code they want? What if the government knew that somebody didn't know the password, it would be like a backdoor method to imposing life sentences without due process.

[cubby]

That's like claiming you are 'voluntarily staying in your house' when it is surrounded by people who will shoot you as soon as you step outside. You cannot voluntarily serve a life sentence if part of that includes you being shot if you attempt to leave the prison. The key point that makes it involuntary is the coercion imposed by the state, you cannot voluntarily act while under coercion.

That's how contempt of court works - and courts typically don't ask of people what they don't think they can't provide. So his imprisonment is voluntary, without coercion - under the eyes of the law.

While it does seem like the suspect here may have committed heinous acts, its a problem for everybody if judges can throw people in prison forever without charges. What happens if they put somebody in this situation who does not know the code they want? What if the government knew that somebody didn't know the password, it would be like a backdoor method to imposing life sentences without due process.

That's why the courts exist - to prevent law enforcement from doing something sinister. Of course it still happens. The due process you're claiming doesn't exist is present by the courts. In other words, the court has good reason to believe this guy has the passcodes.

Legal discussions tend to get into the theoretical stages early, which is fine, but tends to ignore practical considerations - on both sides. In this case, the entirety of the case against Rawls is probably being taken into consideration - not just that he has a disc they think has something on it. But other testimony is being taken into account.

[Krastyn]

Shouldn't that then be sufficient evidence for a conviction?

Lets assume for a second that he had something in place that wiped or destroyed the hard drive upon entering the wrong password. Would we be having the same discussion? Would it still matter to have that hard drive opened with its contents destroyed?

Also holding someone indefinitely for such a petty act of non-compliance... (essentially a life sentence) sounds a lot like cruel and unusual punishment. 8th amendment violation.

I fully agree. It's why if you read throughout this thread, I'm on the side that both:
1) Forcing someone to divulge a password is a violation of the 5th
2) If they have enough evidence that it is a "forgone conclusion", they should just lay charges, or let him go

[Noradin]

That's how contempt of court works - and courts typically don't ask of people what they don't think they can't provide. So his imprisonment is voluntary, without coercion - under the eyes of the law.

Contempt of court cannot be up to what the "court thinks", they must provide evidence that what they demand is possible for the one they claim is in contempt or they are essentially kangoroo courts.
Courts are made up of people (just like law enforcement) and people aren't perfect.