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Child Porn Suspect Jailed Indefinitely For Refusing To Decrypt Hard Drives (arstechnica.com) 796

An anonymous reader quotes a report from Ars Technica: A Philadelphia man suspected of possessing child pornography has been in jail for seven months and counting after being found in contempt of a court order demanding that he decrypt two password-protected hard drives. The suspect, a former Philadelphia Police Department sergeant, has not been charged with any child porn crimes. Instead, he remains indefinitely imprisoned in Philadelphia's Federal Detention Center for refusing to unlock two drives encrypted with Apple's FileVault software in a case that once again highlights the extent to which the authorities are going to crack encrypted devices. The man is to remain jailed "until such time that he fully complies" with the decryption order. The government successfully cited a 1789 law known as the All Writs Act to compel (PDF) the suspect to decrypt two hard drives it believes contain child pornography. The All Writs Act was the same law the Justice Department asserted in its legal battle with Apple.
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Child Porn Suspect Jailed Indefinitely For Refusing To Decrypt Hard Drives

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  • by allo ( 1728082 ) on Thursday April 28, 2016 @02:03AM (#52002987)

    May keep you in jail. Forever.

    • by Tukz ( 664339 )

      Wasn't there a similar case, albeit with less sinister crimes, a few years ago where they held a guy in contempt for not unlocking something encrypted.

      IANAL and all that, but can't they hold someone in contempt indefinitely?

      • by mysidia ( 191772 ) on Thursday April 28, 2016 @04:04AM (#52003351)

        IANAL and all that, but can't they hold someone in contempt indefinitely?

        It is only legal to hold them in contempt if they ARE capable of complying with the order.

        At such time as the person is physically or mentally incapable of complying with the order, for example, they don't have the information required, or it is not possible for them to perform as requested, they cannot be held in contempt.

        • by Richard_at_work ( 517087 ) on Thursday April 28, 2016 @04:42AM (#52003451)

          A judge is also required to take into account the probability that further incarceration is likely to be conducive to the goal - holding someone in contempt of court is not a punitive measure, its a conducive measure, so if its unlikely to achieve the goal required then a judge is not supposed to continue holding someone in contempt.

          • Re: (Score:3, Interesting)

            by msauve ( 701917 )
            I find that court contemptible, and won't change my mind.
          • by gweihir ( 88907 ) on Thursday April 28, 2016 @07:24AM (#52004075)

            And in other news, if the judge just says "screw him" then the person is screwed. And nothing is ever going to happen to the judge for that evil act.

        • How do you determine if someone actually remembers a password or not?

          I certainly have forgotten passwords to systems I left on the shelf for 7 months or more.

        • by gweihir ( 88907 )

          It is only legal to hold them in contempt if they ARE capable of complying with the order.

          Which happens to be impossible to prove due to fundamental restrictions of how reality works. Hence the government just assumes they are capable and you need to prove they are incapable. Which you cannot do, due to fundamental restrictions of how reality works.

          And there your argument goes out the window completely.

          • by mysidia ( 191772 ) on Thursday April 28, 2016 @09:00AM (#52004825)

            Which happens to be impossible to prove due to fundamental restrictions of how reality works. Hence the government just assumes they are capable

            The government is not allowed to assume that you are guilty. It does not matter how inconvenient this requirement becomes due to how reality works.

            The law requires the government to show you are guilty beyond a reasonable doubt, otherwise the legal principles at the basis of our rule of law say that you must be presumed innocent, in that case you should be released.

            If the suspect has forgotten the password, and reports to have forgotten or never knew the password and has no access to the password, then I do not believe there is any legal basis for holding them in contempt beyond that point.

            Only way they could is they have definitive proof that someone has access to the password, and it's being withheld under the control of the suspect.

    • by Anonymous Coward on Thursday April 28, 2016 @02:29AM (#52003087)

      The sad thing is that they don't have enough evidence to convict him.

      The authorities have called two witnesses. One was the suspect's sister who claimed she looked at child pornography with her brother at his house. The other was a forensic examiner who testified that it was his "best guess" that child pornography was on the drives

      Meaning that the only thing they have on this guy is an accusation from the sister. The other witness have essentially only said that "Well, it's encrypted, what else could it be?"

      This means that if you want to put someone in jail forever all you need to do is to hide an encrypted drive (Or fill it with random noise) in their home and accuse them of keeping child porn on it.
      Without being able to produce a decryption key the poor bastard will be kept in custody indefinitely, probably with less access to exercise and books than a convicted pedophile would.

      • by Anonymous Coward on Thursday April 28, 2016 @02:40AM (#52003121)

        I totally agree. Without EVIDENCE there is no case here. Just because somebody in power 'thinks' he has committed a crime, without any evidence, there is no reason to keep him in prison, and just as you say, you just have to hide an encrypted drive in somebody's house and accuse them of owning child pornography, and they can be kept in prison indefinitely, for having done nothing!

        • by ShanghaiBill ( 739463 ) on Thursday April 28, 2016 @03:21AM (#52003237)

          I totally agree. Without EVIDENCE there is no case here.

          There is evidence. Certainly not enough to convict, but enough to get a warrant to search for additional evidence. The key question is whether he can be compelled to assist in that search. The Supreme Court has ruled that a suspect cannot be compelled to provide the combination to a lock, so I don't see how this is significantly different.

          • by Maritz ( 1829006 ) on Thursday April 28, 2016 @03:34AM (#52003273)
            It's different because terrrrristchildrens.
          • by ole_timer ( 4293573 ) on Thursday April 28, 2016 @06:00AM (#52003715)
            under the 5th amendment he can't be compelled to "utter" the passphrase, but he can be compelled to provide the unencrypted contents in most jurisdictions.
            • by gweihir ( 88907 ) on Thursday April 28, 2016 @07:28AM (#52004115)

              This interpretation is just fundamentally evil as it negates the intended protection for the accused. But what do you expect in a police-state.

              • by Solandri ( 704621 ) on Thursday April 28, 2016 @10:32AM (#52005537)
                No, the intended purpose of the 5th Amendment is to prohibit use of a refusal to testify as evidence of guilt. In the bad old days, a ruler or government would put you on trial and tell you to confess. And if you refused, your refusal was accepted as evidence of your guilt, thus creating a catch-22. The 5th Amendment's protection against being forced to testify against yourself put a cold stop to that.

                If the court has reason to believe someone is hiding evidence, the State compelling him to give it up is not prohibited by the 5th Amendment. e.g. If the State is reasonably sure a guy killed his wife (blood all over the house, bloody knife with his fingerprints all over it, bloody drag marks to the garage, and blood in the trunk), they can press him to reveal where he dumped the body. The 5th Amendment does not protect him from that. All it does is prohibit using his refusal to cooperate as evidence of his guilt.

                If there's a transgression here, it would be the 6th Amendment - right to a speedy trial. This is actually a hole in our legal system. While you cannot be held indefinitely if the police (executive branch) does not press charges, you can be held indefinitely if the court (judicial branch) gives you an order and you refuse to obey it (contempt of court - no trial needed). About a decade ago there was some journalist who spent 2 years in jail because a court ordered him to reveal his source for a story, and he refused.
          • by jbmartin6 ( 1232050 ) on Thursday April 28, 2016 @09:04AM (#52004853)
            The SC has never RULED this. It was mentioned in a different case. However, there is clear precedent in the US in the case law regarding combination safes. The defendant can be compelled to open/unlock in cases where there is clear evidence that relevant items are held by the lock. e.g. if the guy wrote in an email "I keep all that illegal porn on this encrypted volume". One cannot be compelled for a fishing expedition or under the rubric of a more general search warrant. I would guess from the invocation of All Writs that this isn't what happened in the case at hand. Or perhaps as others say it is an attempt to leverage All Writs for a wider precedent. I didn't read the case details, though.
    • Re: (Score:3, Insightful)

      by wbr1 ( 2538558 )
      So having authorities request a password you never had or knew, because you pissed them off, can keep you in jail forever.

      Just pointing out how this can be used as a weapon against anyone, anytime.

      • by SecurityGuy ( 217807 ) on Thursday April 28, 2016 @08:07AM (#52004405)

        Agreed, this is appalling. I have two encrypted databases on my phone. Why two? Because I forgot the password to the first one and had to start over. No power in the world can compel me to unlock that first one. Believe me, I tried.

        The notion that I could be put in jail forever because I legitimately don't remember a password is insane.

  • Well... (Score:5, Insightful)

    by Anonymous Coward on Thursday April 28, 2016 @02:04AM (#52002995)

    The following comes to mind:
    https://xkcd.com/538/

    Sure it's not a hammer, but incarceration sounds like a reasonably persuasive wrench...

    • Re:Well... (Score:4, Insightful)

      by zazzel ( 98233 ) on Thursday April 28, 2016 @05:55AM (#52003693)

      Of course, this shouldn't be legal behaviour for the jurisdiction. He DID turn over all documents, so doesn't that constitute compliance with the All Writs Act? Handing over a password (even if it's not forgotten - and that happened to me twice (!) with encrypted volumes) could mean testifying against yourself - and you don't have to do THAT outside of countries supporting The Inquisition's mode of justice.

  • by Edis Krad ( 1003934 ) on Thursday April 28, 2016 @02:10AM (#52003009)
    The fifth + habeas corpus? This guy has the shittiest lawyer ever or am I missing something?
    • Re:What? (Score:5, Informative)

      by Derekloffin ( 741455 ) on Thursday April 28, 2016 @02:25AM (#52003075)
      Unfortunately for this guy, the 5th has been established to NOT apply in this circumstance, as it is not the suspect's testimony they are seeking, but instead to access something he possesses. It has been likened to if a person has a safe the police have a warrant to search, the person in charge of said safe must provide access to it. I believe the most a lawyer could do for him, given the case law, is get him to enter the password in private so as to not be seen, but that's about it. Now that doesn't mean it is just, but that's what the rules of the system are currently.
      • Re: What? (Score:5, Informative)

        by TheReaperD ( 937405 ) on Thursday April 28, 2016 @02:43AM (#52003131)

        Actually, there's case law in the opposite position as well that says you cannot be forced to give over a password under the 5th Amendment; physical encryption keys is another matter. Eventually, this will need to be ruled on by the SCOTUS. He's going to have to wait until his case gets cleared by a judge.

      • It's still the fifth
        https://en.wikipedia.org/wiki/... [wikipedia.org]
      • Re:What? (Score:5, Informative)

        by phantomfive ( 622387 ) on Thursday April 28, 2016 @03:00AM (#52003183) Journal
        Here is an analysis of the topic [policeone.com]. So far, the question has not been addressed by the supreme court, and other courts have issued mixed decisions.
      • Re:What? (Score:5, Informative)

        by linuxrocks123 ( 905424 ) on Thursday April 28, 2016 @03:56AM (#52003325) Homepage Journal

        You're almost completely wrong.

        Supreme Court case law is 5th Amendment says you don't need to provide a password to a safe. 11th Circuit case law expands this to say you don't need to provide the password to an encrypted disk.

        There are no district court decisions which support your position, exactly. There are a few district courts and the Supreme Court of Massachusetts which rather obviously misapplied the foregone conclusion doctrine to get the result they wanted in specific cases, but nothing else.

        Pennsylvania isn't in the 11th Circuit. The EFF supports an expansive 5th Amendment when it comes to disk encryption, so I suspect the EFF may take this case up and appeal it to get some precedent set, now that they know about it.

  • 5th ammendment (Score:5, Interesting)

    by Anonymous Coward on Thursday April 28, 2016 @02:11AM (#52003013)

    As much as I lack all sympathy for people in possession of child pornography, how is this not against the fifth amendment?

    • Re: (Score:3, Insightful)

      by Anonymous Coward

      Modded you up, god knows how many comments before it took an AC to point out what is the heart of this.

      You can't be forced to bear witness against yourself

      "nor shall be compelled in any criminal case to be a witness against himself,"

      There it is in plain English. The judge holding this man till he complies needs to be tarred feathered then set on fire.

      • Re:5th ammendment (Score:5, Informative)

        by phantomfive ( 622387 ) on Thursday April 28, 2016 @03:11AM (#52003221) Journal
        You don't have to be a witness against yourself, but you do have to provide physical evidence. For example, if a fingerprint or blood was found at the crime scene, you can be compelled to give your fingerprint or blood to test for a match.

        The purpose of the 5th amendment is to prevent situations where police can torture you, or harass you until you confess. That isn't really an issue in the case of DNA or a fingerprint, because the police can't harass your fingers or blood into confessing.

        Even so, the courts are conservative, and won't force you to give evidence if it can be found some other way. For example, they can't force you to open a combination lock on a safe, because the police have the capability to crack the safe. So the court won't force you to do that.

        In the case of an encrypted hard drive, there may be no other way to get the evidence other than the owner decrypting it. So how will the courts rule? I have no idea, it's a complicated case, and the use of the "all writs act" makes it even more complicated. As likely as not, the court will rule based on a strange technicality in order to avoid the heart of the problem.

        (A person can be held indefinitely if they defy a court order, they will be in contempt of court. I think that is true in basically every jurisdiction in the world. The power of the law is heavy).
        • Re:5th ammendment (Score:4, Insightful)

          by Ihlosi ( 895663 ) on Thursday April 28, 2016 @03:30AM (#52003261)
          You don't have to be a witness against yourself, but you do have to provide physical evidence.

          No. You just have to refrain from resisting the authorities (lawful) attempts of obtaining such evidence.

          For example, if a fingerprint or blood was found at the crime scene, you can be compelled to give your fingerprint or blood to test for a match.

          No, you can't be compelled to give blood. You can be compelled to refrain from resisting the authorities' attempts to draw blood (or rather: If you resist, you'll be properly restrained first, then your blood will be taken, and then you'll be jailed for resisting). Same thing for fingerprints. If you don't want to get ink on your fingers yourself, the authorities will perform the necessary movements for you.

          In the case of an encrypted hard drive, there may be no other way to get the evidence other than the owner decrypting it.

          A (written) confession is also physical evidence. Sometimes, there may be no other way to get this evidence than jailing the suspect indefinitely until he produces it. Think about it.

          • Comment removed based on user account deletion
          • Re:5th ammendment (Score:5, Informative)

            by SLi ( 132609 ) on Thursday April 28, 2016 @08:20AM (#52004511)

            That's a nice theory, but unfortunately it's wrong. For example, it has been established that compelling a suspect to give a handwriting sample (Schmerber v. California, 384 U.S. 757 (1966)) or to speak for voice identification (United States v. Dionisio, 410 U.S. 1 (1973)) does not violate the Fifth Amendment. Also permitted is compelling a suspect to sign a document that e.g. a foreign bank requires to release some information, although I'm too lazy to come up with a reference.

    • Re:5th ammendment (Score:4, Interesting)

      by Anonymous Coward on Thursday April 28, 2016 @02:57AM (#52003173)

      Personally I don't care about the child pornography pictures and movies. More precisely, to me they're evidence of wrongdoing, they're horrible and I never want to look at them, but they in and of themselves shouldn't be criminal to possess.

      That last bit is because it's too easy for another miscarriage of justice to claim another victim. Just punishing for possessing pictures is folly and it doesn't really matter what is in the pictures at all. Worse, the law as it stands means manpower is wasted on symptoms and it drives the real perps, those who actually abuse children making the filth, that much deeper underground, making them harder to catch. I want child abusers to be caught, and for that I want law enforcement to be effective, not stupid and petty. This here case is a good example of stupid and petty, even though apparently this specific situation has been twisted not to fall under the fifth.

      What we should do instead? Keep a close eye on people who like child porn and make sure they never get close to actual children. In such situations it's much better to know people's tastes and remain vigilant than to try and punish for "poor taste" just so you no longer have to think about it.

      Anyhow, I suspect this guy might figure he's much better off indefinitely imprisoned without conviction than being a cop and a convicted child botherer in prison, effectively until his death in any case. I say might because maybe he's just dug his heels in on principle and is in it to spite the system, even at the cost of life inprisonment without conviction in a supposedly free and just country. Also because being declared not guilty doesn't get him his job back, or his reputation, and this way he's guaranteed minimal but humane treatment. So he's in a bad situation but his options at change are worse. Better to be stuck in limbo then. I know I'd be very tempted to not give in just on principle, regardless of what's on the hard disk drives.

    • Re:5th ammendment (Score:4, Insightful)

      by organgtool ( 966989 ) on Thursday April 28, 2016 @08:20AM (#52004507)

      As much as I lack all sympathy for people in possession of child pornography

      You might want to be careful about saying that. With all of the vulnerabilities in software these days, it would be relatively easy to have someone take advantage of one of those vulnerabilities to upload some reprehensible images to your computer and leave you with one hot potato on your lap. That's my main problem with any laws of possession: the burden of proof that you willfully obtained the contraband is so low that you're effectively presumed guilty until you prove otherwise.

  • by dr.Flake ( 601029 ) on Thursday April 28, 2016 @03:01AM (#52003187)

    On could imagine a service that is time dependant

    Like, you have to log in every three months, or everything is deleted forever. That would be the only place, where a paraphrase is stored that is so complex you cant be expected to be able to remember.

    You don't even have to actively use the service.

    You just wait three months, than you say: "well I was using this service called KorsakovOnline.com, but they seem to have completely forgotten that i used their service and now they have deleted my profile and data, and they dont keep backups you know. So now its up to you to prove that i am even capable of providing the password."

    Your move Mr Prosecutor

  • *sigh* (Score:5, Interesting)

    by SharpFang ( 651121 ) on Thursday April 28, 2016 @03:48AM (#52003309) Homepage Journal

    I wonder how it would go:

    I plead the fifth.

    There is no child porn on this drive. But there is software, which I have purchased legally, but don't possess the proofs of purchase; they've been lost during a move a year ago. Currently, the copyright-related laws take the approach 'guilty until proven innocent' upon discovery of such software - without proof of purchase I'm automatically assumed to have obtained it illegally. Therefore revealing contents of the drive would incriminate me on a case entirely unrelated to the current one, and in an especially unfair way since despite being innocent I'd be required to prove my innocence, and unable to do it, proclaimed guilty.

    • Re:*sigh* (Score:5, Interesting)

      by KagatoLNX ( 141673 ) <kagato@NospaM.souja.net> on Thursday April 28, 2016 @06:03AM (#52003723) Homepage

      I am not a lawyer. That said, here are a few comments on how I understand things and where I think they'd go. Your mileage may vary.

      I always chuckle at this sort of thing. I like to call this "The Reiser Defense". If you ever followed the Hans Reiser trial, you'll note that he had a fundamental misunderstanding of how law works (or even is supposed to work). As a developer, he saw laws as a program. He thought that he had the program set up so as not to be able to convict him.

      As it happens, the Law is not a program or set of mechanical rules. The Law may *appear* to be that way, but that's mostly a side effect of one of its goals. The Law is intended to be predictable so as not to be perverse when applied to people. The theory goes that people can only be held accountable for breaking laws if they can reasonably have been expected to know that they would fall afoul of it.

      As it happens, this is not a blank check. You have responsibilities not to be entirely ignorant of the law. You have responsibilities to cooperate with law enforcement and the Court. You do not get to interpret the law any more than is necessary to mount your defense. All of your interpretations are subject to validation and endorsement by the Court. So the process surrounding justice use the trappings of a program or set of mechanical rules, but that is largely a construct to allow you to cooperate with the Court in executing the upholding the intent of the Law.

      In fact, it's why it's called Contempt of Court. You have rights under the Law. It's the Court's responsibility to uphold those rights for you. Criminals do not respect the Law. If you behave in such a way as to prevent the Law from being applied by the Court, you show contempt for the rule of law and you hurt your chances in being able to exercise your rights under it. This is a fairly obvious social contract, and that contract--not some expectation that the law function as some sort of autistic machine--is what fundamentally underlies Due Process.

      The Fifth Amendment is a law like any other. It's intention is to ensure that the parties involved in justice maintain separated duties. The theory is that you and the prosecution make claims and the court evaluates those claims. If the Court were permitted to compel you to make certain claims, then it's no longer really evaluating them and the integrity of the system breaks down. That's the context that Fifth Amendment lives in and that's the context within which Courts will evaluate it. It is not a "technicality" that gets you out of cooperating with warrants. So, while the law cannot force you to say something is true or false against your will, it *can* compel your cooperation in unlocking the filing cabinet containing the evidence that implies the same thing. That's the difference, evidence is different from testimony.

      There is a bit of a grey area around combinations / passwords. This is largely due to prosecutors abusing your unwillingness to give them unfettered access to something as being parleyed into some kind of claim of guilt. That's what the Fifth Amendment addresses--your lack of a statement cannot be construed as a claim of guilt. This started with a dissent from the Supreme Court that mentioned that giving up the combination to a lock amounted to testimony that you had access to what it protects. It's similar to a different case where the prosecution subpoenaed "all of the papers that apply to " and the 5th was upheld as saying evaluating which papers were submitted papers would be tantamount to asking for testimony that some of the stuff was illegal. That fine line between testimony and your duty to comply with the collection of evidence by authorities is something best discussed with a lawyer, because it is not a silver bullet.

      I believe that your unconventional take on copyright law isn't likely to get you anywhere. You're effectively claiming that Copyright Law puts you in a 'guilty until proven innocent' which is, more precisely, claiming a violatio

  • by burbilog ( 92795 ) on Thursday April 28, 2016 @03:56AM (#52003321) Homepage
    That's why we really, really, REALLY need serious plausible deniability, despite of what security experts say about it. They force you to give up keys, you give up keys and they can't do anything else (unless they dismantle whole western law system). While it does not protect you from torture, does protect you from the law.
  • Boogeymen (Score:5, Insightful)

    by fnj ( 64210 ) on Thursday April 28, 2016 @04:33AM (#52003431)

    Whom you would destroy, first dehumanize him by labeling him. It's OK to do anything to him, deny him any rights, if he's not human.

    First they come for the suspected terrorists and suspected child pornographers. But it won't stop there.

    • Re:Boogeymen (Score:4, Insightful)

      by MrKaos ( 858439 ) on Thursday April 28, 2016 @05:33AM (#52003599) Journal

      Whom you would destroy, first dehumanize him by labeling him. It's OK to do anything to him, deny him any rights, if he's not human.

      First they come for the suspected terrorists and suspected child pornographers. But it won't stop there.

      You judge a society by how it treats it's most despised.

  • by crioca ( 1394491 ) on Thursday April 28, 2016 @05:07AM (#52003513)
    So what exactly is to stop a court from ordering someone accused of murder to "tell us where the bodies are buried" and when the suspect says "I don't know" locking them up indefinitely?
  • by Vermonter ( 2683811 ) on Thursday April 28, 2016 @05:09AM (#52003525)
    Perhaps some sort of "right" that protected you from self-incrimination.... perhaps one day America will be a free enough country to have this kind of "right"
  • by slacklinejoe ( 1784298 ) on Thursday April 28, 2016 @06:52AM (#52003929)
    It goes without saying that this would be a truly scary precedent if applied widely. Victims of cryptolocker for instance would have encrypted hard drives and literally have no way of providing the key or passphrase necessary to comply with a court order. Smart bad guys could just as easily borrow malware engines to do this to disguise their behavior, so it would not be easily apparent. My personal opinion is that passwords are firmly 5th amendment protected, I just wish it came up under a more defendable case. The investigators should have done more surveillance or traditional investigations (with warrant) before pulling the trigger on the arrest and could have easily removed the ambiguity from the situation.

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