7 ms·

It's not fantasy. Fantasy is a world where you can tell the police "I know how to open that thing that you have a lawful order to investigate, and you don't, so

It's not fantasy. Fantasy is a world where you can tell the police "I know how to open that thing that you have a lawful order to investigate, and you don't, so any crime of which I'm suspected is now uninvestigatable, nanny nanny boo boo". The analog with other difficult locks is just fine; the fact that these locks are so good that they are unbreakable doesn't really change anything about the accused's obligation to cooperate with lawful orders. The protection in the Fifth is to prevent a perverse system of coerced confessions, where innocent people can be placed on the stand and forced to falsely confess before the court. This has been expanded to preclude other types of unreliable confessions. Impeding the execution of a legitimate warrant, even when that warrant is issued in order to obtain evidence to prosecute oneself, is not protected by the Fifth Amendment. The Fifth is not there to allow criminals to get away with things, antagonize the police, or make it hard for society to maintain order. It's not there because keeping "one innocent person out of jail is worth 50 guilty going free" or similar sentiments that are frequently expressed. It's there to prevent a common corruption in the justice process. >Why should the innocent defendant be made to languish in jail indefinitely because the police/prosecutor are inept and incapable of doing their job without reverting to unconstitutional tactics? Because he's violating a lawful order. If the accused wants to challenge the legality of that order, he can file a lawsuit to do so (and from the article, it sounds like he has). But unless the judge supervising that lawsuit issues a stay on the order in question, the accused is still obliged to comply and can be detained based on his/her refusal to do so. Reformation of the contempt of court power is probably reasonable, however. This guy should be charged with obstructing justice and tried instead of kept in prison indefinitely. It'd probably be good to set an upper limit of something like 12 months on contempt of court detainments. I'm not a lawyer.

tansey 10y ago
Except it seems there is good case law to show that in fact suspected cannot be forced to open a combination lock, as it falls under fifth amendment protection. They can, however, be compelled to provide a key if it is a key-based lock. This applies similarly to biometric-based locks. It's hard to believe that an encryption key is any different than a combination lock in this "encryption is like a safe" metaphor. Relevant cases: https://supreme.justia.com/cases/federal/us/425/391/case.html https://supreme.justia.com/cases/federal/us/425/391/case.htm... https://supreme.justia.com/cases/federal/us/487/201/ https://supreme.justia.com/cases/federal/us/487/201/ https://supreme.justia.com/cases/federal/us/530/27/case.html https://supreme.justia.com/cases/federal/us/530/27/case.html
- kakarot 10y ago
  Gosh, compelled is such a nice euphemism for "psychologically and physically brutalized until complicit". I don't think it is right to "compel" you to produce anything, key nor combination.
  - cookiecaper 10y ago
    I mean, yes, the thing that ultimately underpins all authority is the ability to exert physical force to see it honored. I'm not clear on what you're suggesting.
    - diyorgasms 10y ago
      I think it's pretty clear that the parent is accusing the state of using torture to coerce compliance, which is a strong indication that the state itself is no longer legitimate.
      - iopq 10y ago
        The state cannot exist without violence to back it up. Why would anyone pay taxes if you couldn't be thrown in jail for non-compliance?
        diyorgasms 10y ago
        I think you make the mistake of thinking that people oppose all state violence. Many people approve of some state violence in the name of maintaining societal order, but oppose torture. And I would posit that coercive incarceration is a form of torture. It is a mistake to believe that people are ideologically consistent. And I would be hard pressed to believe that torture is not more extreme or less legitimate than other forms of violence.
        kakarot 10y ago
        Thank you. That pretty much sums up what I was getting at. I understand the need for violence when one man attacks me or my family. And I understand the need for violence when one man attacks any human around me. These people break the Golden Rule and remove themselves from its binding contract of being treated equally. BUT, they still deserve to be treated fairly. Sometimes, even you can get them to see the error of their ways, and use their past to create a better future for others, and all without violence. But asking someone to give you a variable to a mathematical algorithm that he owns is absolute horse shit.
kelnos 10y ago
> Because he's violating a lawful order. If the accused wants to challenge the legality of that order, he can file a lawsuit to do so (and from the article, it sounds like he has). But unless the judge supervising that lawsuit issues a stay on the order in question, the accused is still obliged to comply and can be detained based on his/her refusal to do so. So here's the thing about that. If he's filed an appeal on a lawful order, he should not have to sit in jail while the appeals process is working its way through. That alone is coercion. That corrupts the legal process. If he has a legitimate claim that the appeals court doesn't immediately throw out, then the lower court is putting pressure on him to not wait for the appeals court's decision by depriving him of my freedom while he waits. Yes, the appeals court judge could issue a stay on the order. The fact that he/she hasn't indicates to me that the appeals court would prefer to use their own form of coercion and judicial corruption in the hopes that Rawls will just get tired of sitting in jail eventually and comply. And that's the problem with contempt-of-court. If you can be held indefinitely without being charged with anything, that's a corruption of the legal process. Someone being held in that manner for long enough will likely do anything to get out of that situation, even confess to a crime that carries a sentence of a defined length, because knowing you'll be out in 10 years (or whatever) might be better than being held indefinitely.
- cookiecaper 10y ago
  >And that's the problem with contempt-of-court. If you can be held indefinitely without being charged with anything, that's a corruption of the legal process. Someone being held in that manner for long enough will likely do anything to get out of that situation, even confess to a crime that carries a sentence of a defined length, because knowing you'll be out in 10 years (or whatever) might be better than being held indefinitely. Yeah, as I said in my original post, I agree with this. There needs to be a limit on contempt-of-court. The flip side, however, is that someone who does something that would carry a large prison sentence would be incentivized to violate orders, spend one year waiting out contempt charges, get charged with obstruction and sentenced to 3-5 years, making a total of 4-6 years jail time. That could be a big win for the criminal if complying with the government's order would allow them to prove a crime that carries a much stiffer sentence.
Natanael_L 10y ago
Being forced to decode written notes to incriminate yourself is about equal to producing the password that decodes the encrypted data. In both cases you use a secret and some procedure to derive readable information from some other information. And in both cases, it is generally impossible to prove you are able to!
- cookiecaper 10y ago
  The difference is that if a defendant is forced to decode a unique cipher they've made up, there's no independent way to verify its contents. You can't prove that an investigator didn't say "Look, the only way you're going to ever get out of here is if you 'decode' this and make sure it says that you committed the crime." Whereas with a well-understood, industry-accepted cipher, you can use the key and obtain the evidence exactly as it sits independent of the defendant's disposition and without requiring any unique or special tooling to be provided by the defendant. There is no opportunity to influence the contents of the decrypted disk. Ultimately, encryption may end up strengthening the prosecution's case because it can't reasonably be argued that any evidence tampering or manipulation occurred prior to decryption. When the defendant either discloses the passphrase or enters it to unlock the disks for the police without disclosing it, the disk will either decrypt or not, and when it decrypts, it will either contain the evidence or not. Nothing said to or done by the defendant since the evidence was seized can have any influence on the contents of the disk. That means the Fifth Amendment's purpose of preserving a prosecutorial justice system dependent upon the use of objective proof rather than individual manipulation remains intact. It would be interesting to see how this would've played out if Rawls had been using something like TrueCrypt's hidden container encryption, which uses steganographic techniques to allow the user to generate distinct blocks of cleartext from the same block of encrypted data. In that scenario, theoretically, there is no way to prove that the hidden container exists and that you have not fully complied with the police's request to decrypt.
  - Natanael_L 10y ago
    https://news.ycombinator.com/item?id=13636040 https://news.ycombinator.com/item?id=13636040
baddox 10y ago
> It's not fantasy. Fantasy is a world where you can tell the police "I know how to open that thing that you have a lawful order to investigate, and you don't, so any crime of which I'm suspected is now uninvestigatable, nanny nanny boo boo". And your alternative to this "fantasy" is that you go to jail for the rest of your life if you refuse to comply? I find that far more ridiculous.
- cookiecaper 10y ago
  Yes, effectively. The alternative to effectively giving oneself a life sentence is to comply with the order and allow the government the access they need to proceed with the criminal case. This man's incarceration on contempt charges will end on the day that he complies with the lawful order. Rawls is rolling the dice here. He's hoping that he can press this issue on constitutional grounds and that he'll prevail, which will prevent the investigators from accessing the contents of his disk and, in all likelihood, prevent his conviction. If he wins on the constitutional matters, he'll be able to walk free as a bird when the case is decided (and may end up being entitled to compensatory damages). That's the outcome he's hoping for. If he loses the constitutional case, he will probably decrypt the disks and allow the justice system to finish processing his case so that he can get an end date on his incarceration. In all likelihood, complying with the order will lead to his criminal conviction and a sentence of at least several years. After that sentence completes, he will be a convicted felon, and in most states, he will have to register as a sex offender. He will have to live under a variety of restrictions related to those statuses for the rest of his life. Rawls's hope is that the court will rule that he cannot be ordered to decrypt his disks on constitutional grounds. This is all a wager on his part. As his incarceration on contempt charges is essentially voluntary, characterizing it as an "indefinite" or "life" sentence is improper. He has no sentence. To go free, he need only comply with the lawful order that was served upon him (of course, he will probably be arrested on charges related to the data on his computer shortly thereafter, potentially before leaving the jailhouse), or convince a higher judge that the order should be stayed pending the outcome of the lawsuit challenging its validity. Another potential avenue to freedom, at this stage, would be convincing Congress and the President that the law should be modified so that either a) the judge's order is invalidated by new statutory requirements and the constitutional matter is no longer relevant; or b) the crime being investigated is no longer criminal.
baddox 10y ago
> The protection in the Fifth is to prevent a perverse system of coerced confessions, where innocent people can be placed on the stand and forced to falsely confess before the court. Do you have a source for this claim? Compelled confessions are already invalid. I'm skeptical that this was the primary purpose of the amendment.
- cookiecaper 10y ago
  > Compelled confessions are already invalid. Compelled confessions are not "already invalid" separate from the Fifth Amendment. To the extent that statutory restrictions prevent it, that arises from the same impulse of the Fifth and is most likely primarily intended to be supplementary thereto. The right against self-incrimination is intended to establish a system of justice that requires prosecutors to obtain real proof rather than making it dependent on manipulating the accused, who may well be innocent, into believing that a confession is the only way out (that is, confessions extracted by coercion). Similar rights existed in multiple state constitutions prior to the ratification of the federal constitution. Note also that incorporation didn't begin to occur until the late 1800s-early 1900s, so independent state statutes protecting this right would've been necessary, and their existence doesn't mean that the Fifth didn't also target this protection. >Do you have a source for this claim? This overview seems pretty accessible: http://www.slate.com/articles/news_and_politics/explainer/2002/02/where_did_the_fifth_amendment_come_from.html http://www.slate.com/articles/news_and_politics/explainer/20.... Quote: >The Fifth Amendment [...] was created in reaction to the excesses of the Courts of Star Chamber and High Commission. [...] These courts utilized the inquisitorial method of truth-seeking as opposed to the prosecutorial, meaning that prosecutors did not bear the burden of proving a case, but that sufficient "proof" came from browbeating confessions out of the accused. [...] With the abolition of the Courts of Star Chamber and High Commission, the common law courts of England incorporated this principle of nemo tenetur—that no man should be bound to accuse himself. By the 18th century, English law provided that neither confessions coerced during the trial nor pretrial confessions obtained through torture could be used. This was based on the belief that coerced confessions were inherently unreliable.
scotty79 10y ago
> "I know how to open that thing that you have a lawful order to investigate, and you don't, so any crime of which I'm suspected is now uninvestigatable, nanny nanny boo boo" So "I know stuff about a thing that you have a lawful order to investigate, and you don't, so any crime of which I'm suspected is now uninvestigatable, nanny nanny boo boo" is fine, real and serious, but "I know a thing that would allow you to open that thing that you have a lawful order to investigate, and you don't, so any crime of which I'm suspected is now uninvestigatable, nanny nanny boo boo" is laughable? Should you be also compelled by indefinite arrest to disclose location of the body of your victim (when other evidence against you is insufficient)? Because it looks mighty similar to disclosing password to encrypted evidence of the crime.
- cookiecaper 10y ago
  >So "I know stuff about a thing that you have a lawful order to investigate, and you don't, so any crime of which I'm suspected is now uninvestigatable, nanny nanny boo boo" is fine, real and serious No, this isn't fine. If there is a lawful order to gather evidence related to the crime, the accused can be compelled to comply. For example, the accused can be compelled to provide documentation under subpoena, submit to police interrogations, be a witness in court, etc. They cannot be compelled to testify against themselves. When someone invokes the Fifth Amendment, the presiding officer must decide whether there is a reasonable claim that responding to the question or demand as posed may incriminate that person. If the presiding officer is not satisfied that such a connection exists or that the inculpatory value of the response does not rise to the level of testimonial self-incrimination, they can, and do, order the person to comply. If the accused feels this order has been wrongly made and that their Fifth Amendment rights either were or could be violated, they are free to challenge the order in court, but that doesn't mean that there won't be consequences for non-compliance while the challenge processes (a judge overseeing the challenge may or may not issue a stay or restraining order to limit such consequences). >Should you be also compelled by indefinite arrest to disclose location of the body of your victim (when other evidence against you is insufficient)? No, because that unquestionably rises to the level of testimonial self-incrimination, whereas granting access to something found during the execution of a legal search warrant does not. >Because it looks mighty similar to disclosing password to encrypted evidence of the crime. Ultimately the courts will have to decide whether this is similar enough or not. Under the current law, the answer is non-obvious, and it must be established by the conventional legal process, which yes, is indeed pain-stakingly slow. But there is no exceptional injustice underway here. This is the way the system works. It's not always pleasant, but then, neither is the real world. If you want to discuss reforms that could require all cases to reach a final resolution within 12 months of their initiation, I'm all for that. Dragging these proceedings out over 5-10 years is very frustrating. But again, the backlog and slow conventions of the courts are a different matter than whether or not this man's constitutional rights are being violated (except insofar as these apply to the 6th Amendment, which guarantees the right to a speedy trial; it does not, however, guarantee the right to a speedy appeal), whether his detainment qualifies as "torture", or whether some other grave miscarriage of justice is occurring here.
mnm1 10y ago
"The protection in the Fifth is to prevent a perverse system of coerced confessions, where innocent people can be placed on the stand and forced to falsely confess before the court." That's what's happening here. It has led to an extreme corruption of justice where a defendant's rights are violated until he testifies against himself (which also violates his rights, so a Catch-22 situation). He is compelled to testify against himself (5th). He was not given a speedy trial (6th). He was punished in a cruel and unusual manner with life imprisonment despite not being convicted (8th). He is guilty until proven innocent. All because he refuses to talk. This particular defendant clearly does NOT have the right to remain silent. In which case, that must not be a right. In which case, the 5th amendment either doesn't exist or is being violated. We don't even know if this guy has the password. We don't even know if there is any actual data on the drives at all. He hasn't been convicted of anything. Yet he's spending the rest of his life, potentially, in jail because he refuses to be coerced by the corrupt government or does not have the information they want.
- cookiecaper 10y ago
  >He is compelled to testify against himself (5th). The courts do not agree with that interpretation. Defendants and witnesses are required to comply with subpoenas and warrants and produce documentation on demand, unless they can satisfy the court that production of said documentation is potentially inculpatory and that providing it rises to the level of testimonial self-incrimination under the facts of the case. That's going to vary and the accused may win a lawsuit to confirm that that is indeed what's occurring in this case. At the moment, it's an unsettled question. >He was not given a speedy trial (6th). He hasn't been arraigned, so of course he can't be tried. He's been detained for contempt. If he wants a speedy trial, he can comply with the court order that allows the investigators to continue with his case, and he can go free in the mean time. Perhaps contempt-of-court needs to be reworked such that indefinite detention under it is not allowed, but that's not a constitutional issue. Contact your representatives and let them know you want this law passed. >He was punished in a cruel and unusual manner with life imprisonment despite not being convicted (8th). He can end his detainment at any time by complying with the court order. He is willfully keeping himself imprisoned. He has not been sentenced and, theoretically, will be free to go once he complies with the court's order. It is very likely that he has chosen incarceration and a constitutional challenge because he prefers the remote possibility that he may win this challenge to the near-certainty of a felony sex crimes conviction if he complies. >He is guilty until proven innocent. It may be that some type of check on extended contempt detainments is appropriate. For example, convening a jury to evaluate the accused's ability to comply every 90 days may be wise. But practically speaking, he is not guilty; he is being detained because he refuses to comply with a court order. If the court is unable to enforce its orders any time a person says "Sorry, I don't remember how to do that", its authority will vanish. I understand the contention is that decrypting disks is testimonial self-incrimination. That's the issue before the court, and for whatever reason (which could probably be looked up), the courts hearing that issue declined to stay the original order while the issue pends. I personally do not find that argument convincing, as the contents of the disk need not, and indeed cannot, be altered by the accused to plant a "false confession" merely by unlocking them. Any evidence revealed by the decryption would've been as it was before any threat or incentive was issued. Courts have ruled on a variety of occasions that complying with requests to furnish evidence which may be inculpatory does not by itself rise to the level of testimonial self-incrimination. Imagine the fallout from a world where the courts did indeed rule that the defendant was not required to comply with any subpoena, warrant, or order that may reveal criminal behavior. Our system would fall apart right away. The 5th is not designed to allow people to destroy or hide evidence. It's designed to prevent inquisitions, where a person's guilt is determined based on the linguistic trickery and/or the direct threats made by an inquisitor, instead of an evidentiary standard that must be proven. The 5th amendment still allows for confessions and it still allows the police to require accused individuals to furnish evidence and documentation, it just provides a protection to check the prosecutor's incentive to force false confessions. >All because he refuses to talk. This particular defendant clearly does NOT have the right to remain silent. There is no absolute "right to remain silent" in the United States. There is only the right to refrain from testimonial self-incrimination. Judges can and do regularly order persons to provide legitimate answers to questions, orders, and subpoenas if they cannot satisfactorily demonstrate how responding to them could reasonably jeopardize this right. >We don't even know if this guy has the password. True, there's no way to know that with certainty. However, there is a way to know beyond reasonable doubt. His regular use of the computer necessarily required him to unlock the disks. It's clear that at the time the order was issued, he knew how to do it. Perhaps he can make the case that sixteen months after the fact, he is no longer able to recall the passphrases, and maybe that's his strategy; at some point, as time wears on, this will have to be considered credible.

tansey 10y ago

Except it seems there is good case law to show that in fact suspected cannot be forced to open a combination lock, as it falls under fifth amendment protection. They can, however, be compelled to provide a key if it is a key-based lock. This applies similarly to biometric-based locks. It's hard to believe that an encryption key is any different than a combination lock in this "encryption is like a safe" metaphor. Relevant cases: https://supreme.justia.com/cases/federal/us/425/391/case.html https://supreme.justia.com/cases/federal/us/425/391/case.htm... https://supreme.justia.com/cases/federal/us/487/201/ https://supreme.justia.com/cases/federal/us/487/201/ https://supreme.justia.com/cases/federal/us/530/27/case.html https://supreme.justia.com/cases/federal/us/530/27/case.html

kakarot 10y ago
Gosh, compelled is such a nice euphemism for "psychologically and physically brutalized until complicit". I don't think it is right to "compel" you to produce anything, key nor combination.
- cookiecaper 10y ago
  I mean, yes, the thing that ultimately underpins all authority is the ability to exert physical force to see it honored. I'm not clear on what you're suggesting.
  - diyorgasms 10y ago
    I think it's pretty clear that the parent is accusing the state of using torture to coerce compliance, which is a strong indication that the state itself is no longer legitimate.
    - iopq 10y ago
      The state cannot exist without violence to back it up. Why would anyone pay taxes if you couldn't be thrown in jail for non-compliance?
      - diyorgasms 10y ago
        I think you make the mistake of thinking that people oppose all state violence. Many people approve of some state violence in the name of maintaining societal order, but oppose torture. And I would posit that coercive incarceration is a form of torture. It is a mistake to believe that people are ideologically consistent. And I would be hard pressed to believe that torture is not more extreme or less legitimate than other forms of violence.
        kakarot 10y ago
        Thank you. That pretty much sums up what I was getting at. I understand the need for violence when one man attacks me or my family. And I understand the need for violence when one man attacks any human around me. These people break the Golden Rule and remove themselves from its binding contract of being treated equally. BUT, they still deserve to be treated fairly. Sometimes, even you can get them to see the error of their ways, and use their past to create a better future for others, and all without violence. But asking someone to give you a variable to a mathematical algorithm that he owns is absolute horse shit.

kelnos 10y ago

> Because he's violating a lawful order. If the accused wants to challenge the legality of that order, he can file a lawsuit to do so (and from the article, it sounds like he has). But unless the judge supervising that lawsuit issues a stay on the order in question, the accused is still obliged to comply and can be detained based on his/her refusal to do so. So here's the thing about that. If he's filed an appeal on a lawful order, he should not have to sit in jail while the appeals process is working its way through. That alone is coercion. That corrupts the legal process. If he has a legitimate claim that the appeals court doesn't immediately throw out, then the lower court is putting pressure on him to not wait for the appeals court's decision by depriving him of my freedom while he waits. Yes, the appeals court judge could issue a stay on the order. The fact that he/she hasn't indicates to me that the appeals court would prefer to use their own form of coercion and judicial corruption in the hopes that Rawls will just get tired of sitting in jail eventually and comply. And that's the problem with contempt-of-court. If you can be held indefinitely without being charged with anything, that's a corruption of the legal process. Someone being held in that manner for long enough will likely do anything to get out of that situation, even confess to a crime that carries a sentence of a defined length, because knowing you'll be out in 10 years (or whatever) might be better than being held indefinitely.

cookiecaper 10y ago
>And that's the problem with contempt-of-court. If you can be held indefinitely without being charged with anything, that's a corruption of the legal process. Someone being held in that manner for long enough will likely do anything to get out of that situation, even confess to a crime that carries a sentence of a defined length, because knowing you'll be out in 10 years (or whatever) might be better than being held indefinitely. Yeah, as I said in my original post, I agree with this. There needs to be a limit on contempt-of-court. The flip side, however, is that someone who does something that would carry a large prison sentence would be incentivized to violate orders, spend one year waiting out contempt charges, get charged with obstruction and sentenced to 3-5 years, making a total of 4-6 years jail time. That could be a big win for the criminal if complying with the government's order would allow them to prove a crime that carries a much stiffer sentence.

Natanael_L 10y ago

Being forced to decode written notes to incriminate yourself is about equal to producing the password that decodes the encrypted data. In both cases you use a secret and some procedure to derive readable information from some other information. And in both cases, it is generally impossible to prove you are able to!

cookiecaper 10y ago
The difference is that if a defendant is forced to decode a unique cipher they've made up, there's no independent way to verify its contents. You can't prove that an investigator didn't say "Look, the only way you're going to ever get out of here is if you 'decode' this and make sure it says that you committed the crime." Whereas with a well-understood, industry-accepted cipher, you can use the key and obtain the evidence exactly as it sits independent of the defendant's disposition and without requiring any unique or special tooling to be provided by the defendant. There is no opportunity to influence the contents of the decrypted disk. Ultimately, encryption may end up strengthening the prosecution's case because it can't reasonably be argued that any evidence tampering or manipulation occurred prior to decryption. When the defendant either discloses the passphrase or enters it to unlock the disks for the police without disclosing it, the disk will either decrypt or not, and when it decrypts, it will either contain the evidence or not. Nothing said to or done by the defendant since the evidence was seized can have any influence on the contents of the disk. That means the Fifth Amendment's purpose of preserving a prosecutorial justice system dependent upon the use of objective proof rather than individual manipulation remains intact. It would be interesting to see how this would've played out if Rawls had been using something like TrueCrypt's hidden container encryption, which uses steganographic techniques to allow the user to generate distinct blocks of cleartext from the same block of encrypted data. In that scenario, theoretically, there is no way to prove that the hidden container exists and that you have not fully complied with the police's request to decrypt.
- Natanael_L 10y ago
  https://news.ycombinator.com/item?id=13636040 https://news.ycombinator.com/item?id=13636040

baddox 10y ago

> It's not fantasy. Fantasy is a world where you can tell the police "I know how to open that thing that you have a lawful order to investigate, and you don't, so any crime of which I'm suspected is now uninvestigatable, nanny nanny boo boo". And your alternative to this "fantasy" is that you go to jail for the rest of your life if you refuse to comply? I find that far more ridiculous.

cookiecaper 10y ago
Yes, effectively. The alternative to effectively giving oneself a life sentence is to comply with the order and allow the government the access they need to proceed with the criminal case. This man's incarceration on contempt charges will end on the day that he complies with the lawful order. Rawls is rolling the dice here. He's hoping that he can press this issue on constitutional grounds and that he'll prevail, which will prevent the investigators from accessing the contents of his disk and, in all likelihood, prevent his conviction. If he wins on the constitutional matters, he'll be able to walk free as a bird when the case is decided (and may end up being entitled to compensatory damages). That's the outcome he's hoping for. If he loses the constitutional case, he will probably decrypt the disks and allow the justice system to finish processing his case so that he can get an end date on his incarceration. In all likelihood, complying with the order will lead to his criminal conviction and a sentence of at least several years. After that sentence completes, he will be a convicted felon, and in most states, he will have to register as a sex offender. He will have to live under a variety of restrictions related to those statuses for the rest of his life. Rawls's hope is that the court will rule that he cannot be ordered to decrypt his disks on constitutional grounds. This is all a wager on his part. As his incarceration on contempt charges is essentially voluntary, characterizing it as an "indefinite" or "life" sentence is improper. He has no sentence. To go free, he need only comply with the lawful order that was served upon him (of course, he will probably be arrested on charges related to the data on his computer shortly thereafter, potentially before leaving the jailhouse), or convince a higher judge that the order should be stayed pending the outcome of the lawsuit challenging its validity. Another potential avenue to freedom, at this stage, would be convincing Congress and the President that the law should be modified so that either a) the judge's order is invalidated by new statutory requirements and the constitutional matter is no longer relevant; or b) the crime being investigated is no longer criminal.

baddox 10y ago

> The protection in the Fifth is to prevent a perverse system of coerced confessions, where innocent people can be placed on the stand and forced to falsely confess before the court. Do you have a source for this claim? Compelled confessions are already invalid. I'm skeptical that this was the primary purpose of the amendment.

cookiecaper 10y ago
> Compelled confessions are already invalid. Compelled confessions are not "already invalid" separate from the Fifth Amendment. To the extent that statutory restrictions prevent it, that arises from the same impulse of the Fifth and is most likely primarily intended to be supplementary thereto. The right against self-incrimination is intended to establish a system of justice that requires prosecutors to obtain real proof rather than making it dependent on manipulating the accused, who may well be innocent, into believing that a confession is the only way out (that is, confessions extracted by coercion). Similar rights existed in multiple state constitutions prior to the ratification of the federal constitution. Note also that incorporation didn't begin to occur until the late 1800s-early 1900s, so independent state statutes protecting this right would've been necessary, and their existence doesn't mean that the Fifth didn't also target this protection. >Do you have a source for this claim? This overview seems pretty accessible: http://www.slate.com/articles/news_and_politics/explainer/2002/02/where_did_the_fifth_amendment_come_from.html http://www.slate.com/articles/news_and_politics/explainer/20.... Quote: >The Fifth Amendment [...] was created in reaction to the excesses of the Courts of Star Chamber and High Commission. [...] These courts utilized the inquisitorial method of truth-seeking as opposed to the prosecutorial, meaning that prosecutors did not bear the burden of proving a case, but that sufficient "proof" came from browbeating confessions out of the accused. [...] With the abolition of the Courts of Star Chamber and High Commission, the common law courts of England incorporated this principle of nemo tenetur—that no man should be bound to accuse himself. By the 18th century, English law provided that neither confessions coerced during the trial nor pretrial confessions obtained through torture could be used. This was based on the belief that coerced confessions were inherently unreliable.

scotty79 10y ago

> "I know how to open that thing that you have a lawful order to investigate, and you don't, so any crime of which I'm suspected is now uninvestigatable, nanny nanny boo boo" So "I know stuff about a thing that you have a lawful order to investigate, and you don't, so any crime of which I'm suspected is now uninvestigatable, nanny nanny boo boo" is fine, real and serious, but "I know a thing that would allow you to open that thing that you have a lawful order to investigate, and you don't, so any crime of which I'm suspected is now uninvestigatable, nanny nanny boo boo" is laughable? Should you be also compelled by indefinite arrest to disclose location of the body of your victim (when other evidence against you is insufficient)? Because it looks mighty similar to disclosing password to encrypted evidence of the crime.

cookiecaper 10y ago
>So "I know stuff about a thing that you have a lawful order to investigate, and you don't, so any crime of which I'm suspected is now uninvestigatable, nanny nanny boo boo" is fine, real and serious No, this isn't fine. If there is a lawful order to gather evidence related to the crime, the accused can be compelled to comply. For example, the accused can be compelled to provide documentation under subpoena, submit to police interrogations, be a witness in court, etc. They cannot be compelled to testify against themselves. When someone invokes the Fifth Amendment, the presiding officer must decide whether there is a reasonable claim that responding to the question or demand as posed may incriminate that person. If the presiding officer is not satisfied that such a connection exists or that the inculpatory value of the response does not rise to the level of testimonial self-incrimination, they can, and do, order the person to comply. If the accused feels this order has been wrongly made and that their Fifth Amendment rights either were or could be violated, they are free to challenge the order in court, but that doesn't mean that there won't be consequences for non-compliance while the challenge processes (a judge overseeing the challenge may or may not issue a stay or restraining order to limit such consequences). >Should you be also compelled by indefinite arrest to disclose location of the body of your victim (when other evidence against you is insufficient)? No, because that unquestionably rises to the level of testimonial self-incrimination, whereas granting access to something found during the execution of a legal search warrant does not. >Because it looks mighty similar to disclosing password to encrypted evidence of the crime. Ultimately the courts will have to decide whether this is similar enough or not. Under the current law, the answer is non-obvious, and it must be established by the conventional legal process, which yes, is indeed pain-stakingly slow. But there is no exceptional injustice underway here. This is the way the system works. It's not always pleasant, but then, neither is the real world. If you want to discuss reforms that could require all cases to reach a final resolution within 12 months of their initiation, I'm all for that. Dragging these proceedings out over 5-10 years is very frustrating. But again, the backlog and slow conventions of the courts are a different matter than whether or not this man's constitutional rights are being violated (except insofar as these apply to the 6th Amendment, which guarantees the right to a speedy trial; it does not, however, guarantee the right to a speedy appeal), whether his detainment qualifies as "torture", or whether some other grave miscarriage of justice is occurring here.

mnm1 10y ago

"The protection in the Fifth is to prevent a perverse system of coerced confessions, where innocent people can be placed on the stand and forced to falsely confess before the court." That's what's happening here. It has led to an extreme corruption of justice where a defendant's rights are violated until he testifies against himself (which also violates his rights, so a Catch-22 situation). He is compelled to testify against himself (5th). He was not given a speedy trial (6th). He was punished in a cruel and unusual manner with life imprisonment despite not being convicted (8th). He is guilty until proven innocent. All because he refuses to talk. This particular defendant clearly does NOT have the right to remain silent. In which case, that must not be a right. In which case, the 5th amendment either doesn't exist or is being violated. We don't even know if this guy has the password. We don't even know if there is any actual data on the drives at all. He hasn't been convicted of anything. Yet he's spending the rest of his life, potentially, in jail because he refuses to be coerced by the corrupt government or does not have the information they want.

cookiecaper 10y ago
>He is compelled to testify against himself (5th). The courts do not agree with that interpretation. Defendants and witnesses are required to comply with subpoenas and warrants and produce documentation on demand, unless they can satisfy the court that production of said documentation is potentially inculpatory and that providing it rises to the level of testimonial self-incrimination under the facts of the case. That's going to vary and the accused may win a lawsuit to confirm that that is indeed what's occurring in this case. At the moment, it's an unsettled question. >He was not given a speedy trial (6th). He hasn't been arraigned, so of course he can't be tried. He's been detained for contempt. If he wants a speedy trial, he can comply with the court order that allows the investigators to continue with his case, and he can go free in the mean time. Perhaps contempt-of-court needs to be reworked such that indefinite detention under it is not allowed, but that's not a constitutional issue. Contact your representatives and let them know you want this law passed. >He was punished in a cruel and unusual manner with life imprisonment despite not being convicted (8th). He can end his detainment at any time by complying with the court order. He is willfully keeping himself imprisoned. He has not been sentenced and, theoretically, will be free to go once he complies with the court's order. It is very likely that he has chosen incarceration and a constitutional challenge because he prefers the remote possibility that he may win this challenge to the near-certainty of a felony sex crimes conviction if he complies. >He is guilty until proven innocent. It may be that some type of check on extended contempt detainments is appropriate. For example, convening a jury to evaluate the accused's ability to comply every 90 days may be wise. But practically speaking, he is not guilty; he is being detained because he refuses to comply with a court order. If the court is unable to enforce its orders any time a person says "Sorry, I don't remember how to do that", its authority will vanish. I understand the contention is that decrypting disks is testimonial self-incrimination. That's the issue before the court, and for whatever reason (which could probably be looked up), the courts hearing that issue declined to stay the original order while the issue pends. I personally do not find that argument convincing, as the contents of the disk need not, and indeed cannot, be altered by the accused to plant a "false confession" merely by unlocking them. Any evidence revealed by the decryption would've been as it was before any threat or incentive was issued. Courts have ruled on a variety of occasions that complying with requests to furnish evidence which may be inculpatory does not by itself rise to the level of testimonial self-incrimination. Imagine the fallout from a world where the courts did indeed rule that the defendant was not required to comply with any subpoena, warrant, or order that may reveal criminal behavior. Our system would fall apart right away. The 5th is not designed to allow people to destroy or hide evidence. It's designed to prevent inquisitions, where a person's guilt is determined based on the linguistic trickery and/or the direct threats made by an inquisitor, instead of an evidentiary standard that must be proven. The 5th amendment still allows for confessions and it still allows the police to require accused individuals to furnish evidence and documentation, it just provides a protection to check the prosecutor's incentive to force false confessions. >All because he refuses to talk. This particular defendant clearly does NOT have the right to remain silent. There is no absolute "right to remain silent" in the United States. There is only the right to refrain from testimonial self-incrimination. Judges can and do regularly order persons to provide legitimate answers to questions, orders, and subpoenas if they cannot satisfactorily demonstrate how responding to them could reasonably jeopardize this right. >We don't even know if this guy has the password. True, there's no way to know that with certainty. However, there is a way to know beyond reasonable doubt. His regular use of the computer necessarily required him to unlock the disks. It's clear that at the time the order was issued, he knew how to do it. Perhaps he can make the case that sixteen months after the fact, he is no longer able to recall the passphrases, and maybe that's his strategy; at some point, as time wears on, this will have to be considered credible.