Innocent until proven guilty? Fifth Amendment rights against self-incrimination? Hah! Not if you forget your passwords, in Post-Constitutional America.
Former Philadelphia Police Sergeant Francis Rawls, above, has spent the past seven months in solitary confinement without conviction because passwords he entered for investigators failed to decrypt his hard drives, seized in connection with a child porn investigation. Rawls says he’s forgotten the correct passwords and so can’t decrypt the drives and provide the cops with evidence that he possessed child porn.
For “failure to cooperate with the investigation,” Rawls has been locked up. He spends 22 and a half hours a day in a cell.
In addition to claiming he cannot remember the passwords, Rawls maintains he doesn’t have to unlock his computer because of his Fifth Amendment right not to incriminate himself. The idea is that the search warrant covered the physical hard drives, not any passwords. If Rawls were to give up the passwords involuntarily and the drives contained kiddie porn, he would have effectively been compelled to admit his guilt.
Last year, following online surveillance, law enforcement agents raided Rawls’ home and seized two external hard drives and other computer gear. Rawls told officers he had “encryption on his computer” and refused to supply them with passwords. Investigators obtained an order compelling Rawls to turn over passwords. A new judge then found that order to be unconstitutional, writing Rawls “has properly invoked the Fifth Amendment privilege against self-incrimination when indicating that he would neither perform the act of decrypting the electronic devices, seized by the Commonwealth, nor provide the passwords to the Grand Jury for the electronic devices.”
Following that judge’s ruling, investigators then went to federal court, where they used the 1789 All Writs Act — the same law the Department of Justice recently tried to use against Apple to try to force the company to unlock an iPhone — to compel Rawls to turn over his encryption keys.
The judge ordered Rawls to be “remanded to the custody of the United States Marshals to be incarcerated until such time that he fully complies with the order to provide his encryption passwords to investigators.” In other words, the judge ordered Rawls locked up until he gave up. Built into the judge’s decision is the implication that Rawls is lying when he says he forgot the passwords.
A federal court has previously ruled that compelled forfeiture of encryption passwords is unconstitutional: In 2012, the 11th Circuit Court reversed an order that would compel a suspect to give up his encryption passwords on drives investigators suspected contained child pornography.
Rawls, pending his appeal, continues to be held in solitary confinement even though he hasn’t been charged with a crime.
BONUS: I get that if Rawls is a pedophile he should be locked away. The thing is he has not been convicted of anything, and is simply invoking some of the most basic Constitutional rights available to Americans. And, as with free speech for people like the Nazis or the KKK, the real test of our commitment to those rights is not in the easy cases, but in the tough ones.
Reprinted with permission from WeMeantWell.com.
