The US Court of Appeals for the Third Circuit has declared that a person who refuses to hand over encrypted data cannot be held in jail for more than 18 months. The ruling sets free a certain Francis Rawls, who has been imprisoned for 4 years because he either wouldn’t or couldn’t decrypt two hard drives that are suspected of containing child pornography.
I Forgot (Heh, heh). That Should Do It
When Rawls was arrested in 2015, he was ordered by the courts to decrypt a couple of hard drives. As expected, Rawls’s lawyers argued that such action would be against his Fifth Amendment rights against self-incrimination. The argument fell on deaf ears, and for good reason: a witness to Rawls’s possession of child pornography (his own sister) and there was no doubt that the hard drives were his. In light of this, the act of decrypting the hard drives didn’t reveal anything that the government didn’t already know (this is known as the “foregone conclusion doctrine” to the Fifth Amendment: there are instances where self-incrimination is not self-incrimination).
Having lost that argument, Rawls claimed that he couldn’t remember his password to the encrypted drives. The courts deliberated over this a bit and concluded that he hadn’t, was playing dumb, and slapped him with contempt. He would be imprisoned until he acquiesced to the court’s demands.
And so four years passed until Rawls’s lawyers successfully argued that their client was a “witness” for all intents and purposes, and his imprisonment as a witness in contempt couldn’t be longer than eighteen months, as specified under federal law.
Technically Not A Ruling on Encryption
The Court of Appeals agreed that Rawls had to be released. Although Rawls was a suspect (he was never actually charged with a crime, so he’s not even a defendant), he could also be considered a witness under the circumstances, and there were plenty of applicable legal precedents under the federal law that governs uncooperative witnesses, including those who shared a dual-identity as either a defendant or suspect.
One of the judges dissented. The other agreed, obviously… but also asked, in essence, what the hell is the prosecution doing? The government already has plenty of evidence to put Rawls in jail for possessing kiddie porn. Why have they not charged Rawls yet? What are they waiting for?
A Play of Shadows?
The Judge brings up a very interesting question indeed. What was the prosecution waiting for? Considering that Americans have the right to a speedy and fair trial, it’s more than bizarre that the government has not charged a person in the four years he’s been jailed; has argued that he should be kept jailed for the foreseeable future; and has argued so while holding plenty of evidence that will send said person to jail for a long time.
If one didn’t know better and was prone to conspiracy theories – which in this day and age doesn’t appear to be a far-fetched way to explain anything, really – one could wonder if this was an attempt to set an example vis-à-vis encryption.
It’s not a secret that (parts of) the US government have been attempting for many years to weaken encryption in one way or another. They tried to ask for backdoors, then backed down. Then they tried to ask for backdoors again, except they called them “not backdoors but something else.” Then they said that criminals were “going dark,” that this was encryption’s fault, and doubled down on this faulty logic by saying that weakened or weaker encryption via backdoors was a risk that people were willing to take for better security – an irony wrapped in an oxymoron if there ever was one, for how do you get better security by ensuring weaker security?
The situation remains to be resolved.
In the meantime, could the government be trying to leap over the encryption issue altogether and get to what matters to them? Arguably, the government doesn’t really care about encryption. Rather, it cares about ensuring that criminals are not roaming free, especially the ones they know are guilty.
If the Rawls gambit had ended in the government’s favor – the suspect not being freed after eighteen months of prison time – they’d have the ideal but very unorthodox (and probably highly unconstitutional) solution to a big part of the problem of going dark: getting their hands on encrypted evidence and/or putting criminals in jail.
Of course, it wouldn’t work for instances where the suspect has passed away. However, in cases like Rawls’s, either the suspect / defendant produces the evidence, ensuring that he goes to jail, or is found to be in contempt and indefinitely goes to jail until he produces the evidence… and then goes to jail based on that evidence. Regardless, that’s one criminal who’s not benefitting from encryption and is not roaming the streets.
As things stand, now there’s a hard limit of eighteen months. Whether this will prompt people to not pull the “I forgot my password” stunt will need to be seen. Although, it should be noted that now we have hard evidence that people are willing to be jailed for over four years rather than provide a password to encrypted data.
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