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Ex-cop who won’t decrypt hard drives still in jail indefinitely

It's not about the Fifth; it's about a search warrant in a child abuse case, and there's no maximum prison sentence for those in contempt

The former cop suspected of possessing child abuse imagery who’s rotting in jail because he can’t, or won’t, decrypt two hard drives?

He’s still rotting in jail. It’s going on two years now. His lawyers are still claiming that holding him breaches his Fifth Amendment right to not incriminate himself.

And the Department of Justice (DOJ) is still saying that he’ll continue to rot in jail indefinitely until he decrypts the drives, which are encrypted with Apple’s FileVault software.

We now know his name: the 17-year veteran and former sergeant of the Philadelphia Police Department is Francis Rawls. During an investigation into child abuse images in 2015, police seized the two hard drives from Rawls’ home. Rawls claims to have forgotten the passwords, but the government still isn’t buying it.

On Monday, Rawls’ lawyers filed a motion to vacate the contempt order (PDF) that’s keeping him behind bars. His legal team, once again arguing for Rawls’ right not to incriminate himself, requested that he be released on bail pending his final appeal to the US Supreme Court.

As it is, his lawyers said, Rawls has already been imprisoned for more than 18 months, which is the statutory maximum under 28 USC § 1826(a) for failure to comply with an order to testify or provide other information in federal judicial proceedings – in other words, failure to comply with a search warrant.

The suspect isn’t going anywhere, the government snapped back on Wednesday. In its response to the motion to vacate (PDF), prosecutors said that from the start, the government has deliberately chosen not to call Rawls as a witness so as to avoid the self-incrimination scenario.

That’s why the government hasn’t compelled Rawls to produce a password, it said in Wednesday’s response. Rather, Rawls was simply asked to perform a physical act to unlock the devices, without having to hand over his actual password. Rawls had, in fact, entered three incorrect passwords during a previous forensic examination.

Two appeals courts have decided that he could unlock the hard drives if he wanted to, however. Rawls has appealed his detention once in federal court and once in the 3rd US Circuit Court of Appeals. Both courts rejected his appeals.

At any rate, Rawls isn’t being held on that statute that has an 18-month maximum, the government said. Rather, he’s being held under the All Writs Act: an archaic statute that’s been around since 1789 and which allows courts to issue writs (orders) “necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law”.

Archaic the act may be, but the government’s dusted it off in compelled decryption cases before this one, in cases involving iPhones of the San Bernardino terrorist and a Brooklyn drug dealer.

It’s not about the Fifth Amendment, the government said in Wednesday’s reply. It’s all about complying with that search warrant.

There’s no limit to how long somebody can be held when they’re in contempt of court, the government said, pointing to a similar case in which someone was held nearly seven years for contempt. The appeals court in that earlier case found that there is…

…no temporal limitation on the amount of time that a contemnor can be confined for civil contempt when it is undisputed that the contemnor has the ability to comply with the underlying order.

Rawls isn’t a witness, so he can’t self-incriminate by testifying against himself. Rather, he’s just somebody being asked to produce something to confirm what the government already knows.

While Rawls act of production of the decrypted computer would have testimonial elements, he was not called as a witness. He was ordered to perform a physical act. Before he sat down at the keyboard, he was not placed under oath.

Yes, Rawls has been in jail for near two years, the government notes. But given that the search warrant showed probable cause for crimes that carry a mandatory total of 20 years jail time, two years isn’t much.

The government concluded by suggesting that the court check in with Rawls to see if he just might be ready to decrypt the hard drives. Do it periodically, it said, in case he changes his mind one of these days.


17 Comments

Indefinite holding due to contempt is itself contemptible. As for forgetting a password, I do that all the time.

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Please read the entire article. He’s not being held for contempt, but for failing to allow execution of a search warrant. Citizens MUST comply with search warrants.

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“Citizens MUST comply with search warrants.”

They have the hard drives. They can search them as much as they like. Nobody owes them any assistance in doing so.

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“There’s no limit to how long somebody can be held when they’re in contempt of court, the government said,…” He is held for contempt.

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So if the known hashes are in fact on the computer, and they can prove that, can they not proceed with the trial with that evidence, or they just want to be 100% sure its a slam dunk to not get stuck in double jeopardy?

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If you’re getting pulled to the side for something like this, cmon just admit guilt and take your punishment. according to the article, its specifically child abuse stuff? you don’t go to jail for maybe having one photo of child abuse some spammer sent to you in a email, so that ex cop must have Gigabytes worth of stuff, lol (and he was a cop? whats wrong with police?)

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arturo gatti wrote:

“[Y]ou don’t go to jail for maybe having one photo of child abuse some spammer sent to you in a email….”

Then you’ve never lived in a jurisdiction with a headline-hungry prosecutor, because that in fact has happened.

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While I doubt he’s totally innocent, it is unreasonable to determine that he knows the passwords if there is any chance he did forget them. Seriously, I forget strong passwords occasionally and while I’d never leave the key to my HD only in my memory, maybe he did. How can you hold someone who legitimately doesn’t know indefinitely? This is like the gov saying I know anything else that I may or may have once known but forgotten. You keep me in jail for 2 years and it’s not a simple password, not shot I know it any more! I couldn’t pull a 2 year old password that I didn’t use often out of my head if I had to.

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I am still not sure how this works legally. Isn’t it the same of ordering a murder suspect to go fetch the murder weapon from wherever he hid it? If you are reasonably sure he committed the murder (but not sure enough to charge him with murder apparently), and you are reasonably sure that he knows where the murder weapon is, just order him to go fetch it. If he doesn’t comply, lock him up until he does. That’s pretty much how this case sounds to me.

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On occasion people forget passwords, what if he actually forgot his? Is our justice system still the best in the world where it puts and keeps people in jail based on something which cannot be proven or disproved such as memory? Merely a rhetorical question of course…

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If there is a forgone conclusion that there is that stuff on his Hard drive then they can proceed with the case… if there is NOT evidence enough to convict then its compelling a criminal to go fetch evidence and give it to the government- clearly not in line with the Constitution,
The government already has a ton of power to punish criminals… they say they have the evidence they need, so why are they reaching beyond the power they already have?
Dont get me wrong, I’m all for cruxifing pedo’s after conviction but this is insane and grants to DOJ the right to shove you in jail forever if you either wont violate your own rights or cant do so because you lost your passkey (and you should have an alpha numeric KEY, not a word)

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This guy is actually a hero.He’s standing up to a government and court system that wants NO limits on its power and NO protection for the right of the individual to look it in the eye and say “None of your damn business!” While we may get the dual boogey men of child molestors and terrorists as justification to allow te government to goosestep it’s way onto people;’s encrypted files,. i distrust the courts and government enough to want there to be some limits on their power and some places their dreamed of omnipotence can’t reach.

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