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

[Pooti]

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

The password is the same as any key access. If there is a warrant to search your house, and you stop that from happening, you broke the law. There is a warrant to search that HDD, he is stopping that from happening. The fact that the key to unlock it is his brain is irrelevant to the 5th.

[Noradin]

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.

Then they should make a ruling on those part not hold him in contemp for something they cannot prove he can actually comply with.

[Themius]

My main issue with people defending the courts decision is the fact in every case like this it has been struck down as a violation of the 5th amendment.

[cubby]

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.

I wasn't aware that you were going to be so literal - are we going to have a middle school level discussion here? Or can we be adults and understand that what the court "thinks" obviously refers to what evidence has been presented to them. So in this case, the court has been presented with evidence that convinces them there is good reason for him to be held in contempt - i.e. that he is lying about "forgetting" his password(s).

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Then they should make a ruling on those part not hold him in contemp for something they cannot prove he can actually comply with.

I'm not sure you're understanding the contempt order, or the law in general. They have proven that he has the passwords - that's why he's being held in contempt.

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My main issue with people defending the courts decision is the fact in every case like this it has been struck down as a violation of the 5th amendment.

In this, the issue in being pressed from a different legal theory, and a surprising persuasive one, given what you said above. The courts should have ruled against this, but they didn't - which is at the very least, interesting.

[Noradin]

The password is the same as any key access. If there is a warrant to search your house, and you stop that from happening, you broke the law. There is a warrant to search that HDD, he is stopping that from happening. The fact that the key to unlock it is his brain is irrelevant to the 5th.

No it is not.
An encryption "key" is just one part of a set of two pieces of data that can be combined to form something legible.
If you switch what one person calls "key" with what they call "data" they will still work exactly the same, the "key" is just as much a piece of data as the "data", so technically the court has a very long "key" for some "data" the accused supposedly remembers but refuses to give to the court.

[cubby]

The password is the same as any key access. If there is a warrant to search your house, and you stop that from happening, you broke the law. There is a warrant to search that HDD, he is stopping that from happening. The fact that the key to unlock it is his brain is irrelevant to the 5th.

@Noradin is correct. Even if it doesn't seem logical, passwords and information "contained in the head" are protected by the 5th Amendment. This isn't the best source, but it explains in pretty decent non-legal-scholar language.

Plain read source.

Full legal brief - summary is in the last few pages with legal analysis and ruling.

It might not mean much, but my background is in the law, and I said exactly what you said, because I thought it was obvious. But I was incorrect.

[Noradin]

I wasn't aware that you were going to be so literal - are we going to have a middle school level discussion here? Or can we be adults and understand that what the court "thinks" obviously refers to what evidence has been presented to them. So in this case, the court has been presented with evidence that convinces them there is good reason for him to be held in contempt - i.e. that he is lying about "forgetting" his password(s).

I do not think that there can be evidence that he is lying about forgetting his password unless they have a someone who got it from him after he claimed he forgot or if they can prove they can read his mind.
In both cases they would have the "key" and the whole "contempt of court" is pointless and they should get on with it instead of holding him indefinitely while they dally.
They claim they already know what is on these drives anyway so let them provide their evidence for knowing and that should be enough to convict him.

(Edit: This is of course a layman's opinion--obviously--but the two main points for me are: The "key" is essentially the same as "data" so giving it up would be self-incriminating, and "contempt of court" should require that the court can provide proof that the demand is lawful and can be fulfilled by the accused. I do not see them providing any proof that he didn't forget. Indirect evidence should not be enough to hold him indefinitely without a ruling.)

[Tijuana]

There has to be something really horrible on that hard drive.

The jail time is for contempt of court I think.






https://www.bleepingcomputer.com/new...ter-two-years/


Francis Rawls, a former Philadelphia cop, will remain in jail for refusing to decrypt a hard drive federal investigators found in his home two years ago during a child abuse investigation.

A judge ordered the man to prison almost two years ago after the suspect claimed he forgot the password of an encrypted Apple FileVault system investigators found attached to his computer while performing a house search.

Investigators said content stored on the encrypted hard drive matched file hashes for known child pornography content [source, page 5]. In addition, the man's sister told investigators that her brother had showed her numerous photos and videos of child abuse and adult material.

Rawls sent to prison in 2015
Authorities tried to make Rawls hand over the hard drive's password to verify claims, but he refused to comply. A federal judge found the man in contempt of court and sentenced him to an indefinite prison sentence until he was willing to cooperate.

Rawls said later he forgot the password and even entered three incorrect passwords during previous meetings with investigators.

The suspect appealed the indefinite prison sentence twice, but both appeals failed. His lawyers tried to argue that holding him breaches his Fifth Amendment right to not incriminate himself, but appeal judges did not see it that way.

Judges pointed out that the Fifth Amendment only applies to witnesses and that the prosecutors didn't call him as a witness but only made a request for him to unlock his device, hence Fifth Amendment protections did not apply.

Rawls files appeal with the Supreme Court
Rawls' team has now filed an appeal with the US Supreme Court on the same grounds. His team also filed a request to have Rawls released during his Supreme Court appeal as he's been held in court for more than 18 months, the standard punishment for contempt of court.

A judge declined the request saying that Rawls was not charged under a standard law (28 USC § 1826), but under All Writs Act (28 U.S.C. § 1651), hence he can be detained indefinitely.

This ancient piece of legislation dictates that US citizens must aide any law enforcement investigation. The prosecution used this legal trickery to avoid calling Rawls as a witness. This is also the same piece of legislation the FBI used against Apple when it tried to force the company to unlock the phone of the San Bernardino mass-shooter.

The government also said that Rawls doesn't have to provide them with his password anymore, as they only need him to perform the act of unlocking the hard drive.

Regardless of what is or is not on the drive, do we really want people jailed for forgetting passwords? I'm amazed at the utter lack of due process this man is being given. He is not a reporter, withholding the identity of a source. He literally could have just forgot the password, and the results would be the same as what is happening here. Using archaic legal hoops to bypass the regular order of business is completely unconstitutional. I'm amazed it has taken this long to get this appealed, given he is in jail sans charges. Any loophole that negates a person's right to address their accusers in court, is an abomination.

Aside from all of that, what of his 5th amendment rights against self incrimination? If there is something illegal on the drive, telling the password is completely equal to bearing witness against himself, and his own interests.

[cubby]

I do not think that there can be evidence that he is lying about forgetting his password unless they have a someone who got it from him after he claimed he forgot or if they can prove they can read his mind.

I actually tend to agree with you here - they don't have evidence of him lying, they just don't believe him - which is something the court can take into account when addressing a contempt order. I know it opens the slippery slope - but a criminal saying "I forgot" is about as common as rain falling down.

In both cases they would have the "key" and the whole "contempt of court" is pointless and they should get on with it instead of holding him indefinitely while they dally. They claim they already know what is on these drives anyway so let them provide their evidence for knowing and that should be enough to convict him.

It's possible they are also pursuing this matter at the same time as they are pressing the contempt charge - it's what I would do in the prosecution's shoes. It's possible they are using the contempt charge to hold him while they shore up their case. It sucks, and might set a bad legal precedent, but it's keeping a child abuser/pornographer off the streets. Which is good, but could come back to bite us later (as a country).

(Edit: This is of course a layman's opinion--obviously--but the two main points for me are: The "key" is essentially the same as "data" so giving it up would be self-incriminating, and "contempt of court" should require that the court can provide proof that the demand is lawful and can be fulfilled by the accused. I do not see them providing any proof that he didn't forget. Indirect evidence should not be enough to hold him indefinitely without a ruling.)

Much to my chargin, your layman's opinion is correct while my initial "legal" opinion was dead wrong - hence this work-around to get the password using the Writ charge. I think the indirect evidence is strong enough on a circumstantial level to hold him on this contempt charge - i.e. they know he knows, and someone more than likely corroborated that thought. I'm guessing on this, however, as I didn't see it mentioned in the story/case.

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Regardless of what is or is not on the drive, do we really want people jailed for forgetting passwords?

I think that is what his lawyers and the ACLU will argue in front of SCOTUS. I mean, "I forgot" is kind of a lame excuse, especially if he accessed it recently (relative to his initial jailing).

Aside from all of that, what of his 5th amendment rights against self incrimination? If there is something illegal on the drive, telling the password is completely equal to bearing witness against himself, and his own interests.

They are trying to get around that with the Writ attack - he's neither charged nor a witness. They are saying that, not me - just to be clear.

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Using archaic legal hoops to bypass the regular order of business is completely unconstitutional. I'm amazed it has taken this long to get this appealed, given he is in jail sans charges.

It was appealed and the Fedeal Circuit Court agreed with the District Court's ruling. So unless an en banc hearing his requested, it either holds or goes to SCOTUS.

[ravenswood]

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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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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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.

P = Plaintext
K1 = Key
C = K1(P)
P = K1(C)

I'm not sure where your confusion lies, it's very straightforward.

[cubby]

P = Plaintext
K1 = Key
C = K1(P)
P = K1(C)

I'm not sure where your confusion lies, it's very straightforward.

Lol.

(is your name from a winery in CA by chance?)

[ravenswood]

Lol.

(is your name from a winery in CA by chance?)

negative, I live in Australia

[LanToaster]

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 hope in that case the Defense wins, and the prosecution still has enough to convict him.

Win/Win Situation.

[Venant]

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.

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.

The problem with applying legalistic reasoning to a situation is that you are asserting that the courts and legal system in this country have not completely departed from reality. The whole doctrine of the constitution being a 'living document' has allowed for an absurd situation where the Supreme Court systematically changes the constitution in response to where the winds of cultural trends blow. You allow enough 'interpretation' of law and you result in a Kafka-esque nightmare.

And we haven't even mentioned the abuses that happened in the national security mania that happened in the years after 9/11 with a number of people being held for years without charges or evidence brought forth. (and I am talking about people who were living in this country, not foreign fighters)

[Mistame]

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.

I was going to make that very point.

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.

That's not at all how the word "voluntary" works, legal or otherwise. Especially considering they're technically wrong.

[cubby]

That's not at all how the word "voluntary" works, legal or otherwise. Especially considering they're technically wrong.

All evidence to the contrary.

He's in there so long as he withholds information the court reasonably believes he has. That is voluntary - he is choosing to be in jail by not complying with the court's order. He doesn't have to but, but chooses to do so.

And the 3rd Circuit Court of Appeals agrees.

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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.

What's the coercion in this situation exactly? No one is outside his house waiting to shoot him, literally or figuratively.

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The problem with applying legalistic reasoning to a situation is that you are asserting that the courts and legal system in this country have not completely departed from reality. The whole doctrine of the constitution being a 'living document' has allowed for an absurd situation where the Supreme Court systematically changes the constitution in response to where the winds of cultural trends blow. You allow enough 'interpretation' of law and you result in a Kafka-esque nightmare.

And we haven't even mentioned the abuses that happened in the national security mania that happened in the years after 9/11 with a number of people being held for years without charges or evidence brought forth. (and I am talking about people who were living in this country, not foreign fighters)

I think that is a conversation for another topic - I do agree with you, at least in part, about the national security abuses. But not about the living document - that is necessary for changing times.

[Noradin]

I actually tend to agree with you here - they don't have evidence of him lying, they just don't believe him - which is something the court can take into account when addressing a contempt order. I know it opens the slippery slope - but a criminal saying "I forgot" is about as common as rain falling down.

Sure, but then the duration they can hold him should never exceed the time of what they could sentence him for if he was found guilty and certainly shouldn't be indefinitely.

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P = Plaintext
K1 = Key
C = K1(P)
P = K1(C)

I'm not sure where your confusion lies, it's very straightforward.

Yes, it is so straight forward that the ancient romans abandoned that kind of encryption because it was too easy to break.
You do not even need any key at all to break that kind of simplistic setup you are proposing.
You are literally a few thousand years behind the times.

[Pooti]

I sense I get in general from this thread, is that it is ok to be a child pornographer so long as you hide it really well.

[Kujako]

I sense I get in general from this thread, is that it is ok to be a child pornographer so long as you hide it really well.

No ones fault but your own that you lack comprehension. Put simply, everyone gets due process and their rights under the Constitution, even you and even people you claim are child pornographers.

[Pooti]

No ones fault but your own that you lack comprehension. Put simply, everyone gets due process and their rights under the Constitution, even you and even people you claim are child pornographers.

I guess if someone had video of your mother being killed, you would be totally ok with the perpetrators getting away without punishment so long as the video is encrypted.