from the all-writs-v.-5th-amendment-v.-throwing-away-the-key dept

The Third Circuit Court of Appeals has finally decided -- after more than four years -- that the government can't keep someone locked up indefinitely for contempt of court charges.

Former Philadelphia policeman Francis Rawls has been locked up since 2015 for refusing to decrypt external hard drives the government claims contain child porn images. The government's claims are based on Rawls' sister's statements. She said Rawls showed her "hundreds" of child porn images that were located on these drives.

The government obtained an All Writs Order demanding Rawls decrypt the devices. This was challenged by Rawls, but unfortunately he did not preserve a Fifth Amendment challenge, so the Appeals Court let the government have its victory. It was a limited victory. It still had two locked drives Rawls claimed he could not remember the passwords for. But it also had Rawls jailed on civil contempt charges.

Rawls will be a free man again, but probably not for long. He challenged the indefinite incarceration, asserting that the law only provides for a maximum of 18 months in jail for civil contempt charges. The court [PDF] agrees:

On September 30, 2015, Rawls was incarcerated for civil contempt after he failed to comply with a court order that he produce several of his seized devices in a fully unencrypted state. Since that day, more than four years ago, Rawls has been held in federal custody. Rawls seeks release arguing that 28 U.S.C. 1826 limits his maximum permissible confinement for civil contempt to 18 months.

Because we conclude 1826 applies to Rawls, we will reverse the order of the District Court and order Rawls release.

The government argued this statute does not apply to Rawls, since he is the one charged with crimes, rather than a witness to a crime, as 1826(a) states:

Whenever a witness in any proceeding before or ancillary to any court or grand jury of the United States refuses without just cause shown to comply with an order of the court to testify or provide other information, including any book, paper, document, record, recording or other material, the court, upon such refusal, or when such refusal is duly brought to its attention, may summarily order his confinement at a suitable place until such time as the witness is willing to give such testimony or provide such information.

Rawls pointed out he is a witness in this case. The government wants him to give up passwords to hard drives likely containing evidence to be used against him. That makes him both a witness and a criminal suspect. Production of these passwords would be testimonial -- information Rawls may know (the passwords) that the government does not. The simple act of producing passwords is itself testimonial. It allows the government to infer Rawls had control of the drives and knowledge of their contents.

The precedent the government relies on here isn't on point:

There is a significant difference between a contempt confinement for failure to provide information and confinement for failure to stop actively harassing court personnel. Unlike the contemnor in Harris, Rawls is being asked to provide information in a proceeding and is therefore a witness under 1826(a).

Furthermore, as the concurring opinion points out, the government's insistence these hard drives be unlocked and that Rawls remained jailed until they are, appears to be completely redundant and unnecessarily cruel.

[B]ased on the evidence in the record (as briefly summarized by Judge Fuentes), it appears that the Government is insisting that Rawls incarceration for contempt be continued even though it already possesses sufficient evidence of Rawls possession and production of child pornography to obtain a conviction under various subsections of 18 U.S.C. 2251 and 2252. In fact, Rawls own sisters testimony regarding Rawls possession of a video of his two nieces, aged four and six, may very well be sufficient to convict him of possession and/or production of child pornography involving a minor in his custody or control.

The government appears to want to punish Rawls simply for being uncooperative and to continue this punishment as long as possible before he faces an even longer sentence for the alleged crimes.

I therefore cannot fathom why the Government is so insistent upon further gilding the lily with the evidence that may well be in the encrypted files on the disputed hard drives and demanding his imprisonment until he coughs up that evidence. There may well be some justification for insisting that Rawls be imprisoned on contempt charges before his all but certain prosecution for child pornography and the very severe sentences he would be exposed to if convicted for the latter offenses, but such justification for the Governments conduct here certainly escapes me.

This isn't a case where evidence necessary for a conviction remains out of reach. The government already has enough to pursue a decades-long sentence. Starting Rawls off with four years in jail before even bringing the case to trial is punishment for punishment's sake. It does not weaken the government's case if the drives remain encrypted. All it does is prevent the government from stacking counts as high as it apparently wants to, forcing it to work with the illegal images it has already recovered.

The Fifth Amendment question remains undisturbed for now. But at least in cases like these, where the government uses a 200-year-old law to compel decryption, it will only be able to lock up unwilling (but presumptively innocent) "witnesses" for 18 months, rather than for the rest of whatever.

Filed Under: 4th amendment, 5th amendment, contempt, decryption, francis rawls, indefinite confinement, passwords

Here is the original post:

Appeals Court Rules That People Can't Be Locked Up Indefinitely For Refusing To Decrypt Devices - Techdirt