What happens when a suspect refuses to decrypt their hard drives for federal investigators?
If prosecutors get their way, one child pornography suspect will be jailed indefinitely until he removes the encryption from two hard drives that may contain child porn. The man has already been in prison for seven months after refusing to do so.
“This is not a fishing expedition on the part of the government,” government lawyers told a federal appeals court in Philadelphia in a brief filed on Monday.
The suspect, identified in court filings as John Doe, was formerly a Philadelphia police sergeant. Media reports identify him as Francis Rawls.
Authorities said it was a “foregone conclusion” that the encrypted hard drives contained child porn, meaning that the man’s indefinite prison sentence was not only not a violation of his Fifth Amendment rights but also specifically warranted by his refusal to comply with the decryption order.
Nonetheless, the man has still not been charged with any child pornography crimes.
The man’s lawyers say he doesn’t know the passwords needed to decrypt the drives. Even if he did, they have argued, doing so would violate his Fifth Amendment right against self-incrimination. His lawyers also say that he should be released because of his otherwise clean record.
But federal prosecutors sharply rebuked that notion in Monday’s filing.
“In fact, Doe had multiple layers of password protection on his devices, and he always entered his passcodes for all of his devices from memory,” they wrote. “Doe never had any trouble remembering his passcodes (other than when compelled to do so by the federal court), never hesitated when entering the passcodes, and never failed to gain entry on his first attempt.”
On the day authorities executed their search warrant, the defendant apparently told police “that his computer and hard drives were password protected and encrypted, and that he knew the codes but would not turn them over to police,” according to prosecutors.
The argument that forced decryption violates a suspect’s Fifth Amendment rights is not new. Civil liberties activists, as well as some judges, have made it in other cases, some concerning smartphone fingerprint readers.
In similar cases, the government has argued that decryption is like providing a key to a safe, which is not constitutionally protected.
The child porn investigation that led to this dispute began in 2015 as authorities monitored Freenet, an anonymity network with a focus on file sharing.
The network has numerous uses, including censorship circumvention and secure communication. But it is also infamous for hosting child porn, earning it attention from police around the world.
H/T Ars Technica
