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19:11 21.03.2017 Get short URL
The 3-0decision madeby the Third US Circuit Court ofAppealsmeans Francis Rawls, a former Philadelphia police officer, will remain imprisoned unless and untiltheorder finding him incontempt ofcourt is lifted or overturned. Rawls was originally jailed in2015 forrefusing tode-encrypt a pair ofhard drives which authorities claim contained child pornography.
In response, he "pleaded the Fifth,"butthe defense was not accepted, and he was summarily sentenced toindefinite detention forcontempt ofcourt, a sentence only tobe lifted if and when he unlocked the drives.
As ofMarch 2017, Rawls has spent 17 months behindbars and the court's ruling means he's likely toremain confined indeterminately unless he obeys the order. Rawls' attorney, Federal Public Defender Keith Donoghue, was reported tobe disappointed bythe ruling, saying "the fact remained" the government was yet tobring any charges againstthe accused.
The Fifth Amendment, inessence, protects suspects frombeing forced todisclose evidence byinvoking the right, suspects incriminal cases are not compelled toanswer questions forlaw enforcement or courts, and generally cannot be penalized forrefusing todo so. For privacy and civil liberties campaigners, already concerned withthe ongoing crackdown onencryption acrossthe Western world, this ruling may be deeply concerning.
Some campaigners have even suggested governmental demands that companies hand overencrypted data amount tobreaches ofthe Fifth Amendment.
However, Dr. Heather Anson, a consultant at Digital Law UK, says the decision stems fromthe highly specific circumstances ofthe case.
"Rawls has likely refused tounlock the drives because doing so will land him inprison forother charges. In tackling his Fifth Amendment defense, authorities cited the 'foregone conclusion exception' tothe Amendment, arguing he could not invoke the right because police already had evidence he'd committed the crime ofwhich he's accused the court agreed withauthorities that it was incontestable the drives contained child pornography," Dr. Anson explained toSputnik.
All ofthis, according tothe Appeals Court, meant the order forRawls tounlock the drives was entirely lawful, and constitutional. Dr. Anson adds that inanother case, where police did not have supplementary evidence, a court ruled a suspect could not be forced tooffer uppasswords forencrypted files.
Nonetheless, the decision comes asencryption is becoming ever-more ubiquitous onmobile phones, computers and applications.
For example, the contempt ofcourtorderagainst Rawls was obtained byciting the 1789 All Writs Act, the same law the US Justice Department invoked inits legal battle withApple, which saw a Magistrate JudgeorderApple toproduce code toenable the FBI todecrypt an iPhone used byone oftwo shooters who killed 14 ata San Bernardino County government building. The government's quest was ultimately unsuccessful.
These cases, Dr. Anson said, were a demonstration governments cannot act withimpunity, and cannot unlock any and all information they wish and that securing relevant warrants can often be difficult. Moreover, she hopes people will not be swayed intoallowing governments tomake the process easier forthemselves.
"The public should always be concerned aboutpowerful attempts toaccess encrypted data, and I hope scaremongering overthe use ofencryption for 'bad things' terrorism and crime doesn't turn opinion againstencryption," Dr. Anson concluded.
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'Always Be Concerned': US Court Slaps Down Fifth Amendment Defense of Encryption - Sputnik International