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Some discussion overlooks that this is a special case: ... the appeals court, like the police, agreed that the presence of child porn on his drives was a "fore

Some discussion overlooks that this is a special case: ... the appeals court, like the police, agreed that the presence of child porn on his drives was a "foregone conclusion." The Fifth Amendment, at its most basic level, protects suspects from being forced to disclose incriminating evidence. In this instance, however, the authorities said they already know there's child porn on the drives, so Rawls' constitutional rights aren't compromised. The Philadelphia-based appeals court ruled: Forensic examination also disclosed that Doe [Rawls] had downloaded thousands of files known by their "hash" values to be child pornography. The files, however, were not on the Mac Pro, but instead had been stored on the encrypted external hard drives. Accordingly, the files themselves could not be accessed. The court also noted that the authorities "found [on the Mac Book Pro] one image depicting a pubescent girl in a sexually suggestive position and logs that suggested the user had visited groups with titles common in child exploitation." They also said the man's sister had "reported" that her brother showed him hundreds of pictures and videos of child pornography. All of this, according to the appeals court, meant that the lower court lawfully ordered Rawls to unlock the drives.

dongslol 10y ago
The critical question is, why haven't they charged him? It is disingenuous of them to bring up the evidence they currently have essentially in an attempt to demonize him. Their evidence is sufficient or it isn't; if it is they should charge him; if not they're demanding self-incrimination.
- rayiner 10y ago
  You need to distinguish between requiring the defendant to turn over incriminating evidence (which the 5th amendment does not protect), and requiring the defendant to make incriminating statements (i.e. to provide incriminating testimony). Sometimes, the act of producing evidence in response to a government request involves the defendant making implicit incriminating assertions. If the government says "produce all your cooked accounting books," handing over those documents implicitly communicates the assertions that (1) certain books exist; (2) those books are doctored; and (3) you have ownership/control over them. However, say the government asks you for your bank records. When you hand them over, you're implicitly saying "I have bank records," and "these are my bank records." That's not incriminating -- even if the bank records themselves might contain incriminating evidence. The "foregone conclusion rule," says that the act of production is non-testimonial when the incriminating facts are already known.[1] If the existence of doctored books is already known by other means, the act of producing them doesn't communicate anything to the authorities. The books themselves are obviously communicated, but the 5th amendment does not protect the underlying evidence. It protects the implied statements by the defendant about the underlying evidence. Hence the threading the needle in the opinion. They're not asking the guy to make incriminating statements about the existence of incriminating evidence. They're asking him to turn over the incriminating evidence they already know exists. [1] Note that the Court is not saying "we already know he's guilty so the 5th amendment doesn't apply."
  - deleted 10y ago
    [deleted]
  - olliej 10y ago
    Quite aside from anything else, can someone explain whether or not the same logic would apply to (for example) asking someone to open a safe vs. the code to open the safe. It seems like this ruling would say that failing to open the safe is functionally the same? As a gratuitously distorted example, lets say i had cooked accounting books in a spreadsheet on my computer, and they were encrypted by a random password that /i/ do not know, but have on a memory stick in a safe. It seems that logically that would be equivalent, but i also am very much not a lawyer so am perfectly willing to accept i am missing nuance of the law. Outside of the law i don't like the forgone conclusion stuff - for example, revolution period you could say hanging out with revolutionaries regularly could reasonably conclude your documents include a calendar for revolutionary meetings so you should be required to provide that information and/or information required to receive that. Obviously that's some contorted logic but i don't think it's that far removed from this. I would argue that a hash match should be sufficient, and i would be convinced that (absent other information and details) this was evidence that he's a pedo, but i can see how a lawyer could create reasonable doubt where in reality there is none (specifically referring to hashes here, nothing else). Of course i can't serve on a jury (and apparently knowing what you're talking about may be disqualifying? :-/)
    - rayiner 10y ago
      > Quite aside from anything else, can someone explain whether or not the same logic would apply to (for example) asking someone to open a safe vs. the code to open the safe. It seems like this ruling would say that failing to open the safe is functionally the same? Basically, judges don't agree on which way this scenario comes out. > Outside of the law i don't like the forgone conclusion stuff - for example, revolution period you could say hanging out with revolutionaries regularly could reasonably conclude your documents include a calendar for revolutionary meetings so you should be required to provide that information and/or information required to receive that. The "foregone conclusion" stuff is narrower than Ars makes it out to be. The gist of the 5th amendment is that the government can make a defendant do things but not transfer information.[1] Sometimes, an action can implicitly transfer information. The foregone conclusion rule just says that if the government already has the information, then the action does not additionally transfer information. In your hypothetical, the foregone conclusion rule would not apply because even if the government "could reasonably conclude" that you have a calendar, producing it would still confirm that conjecture (and thus transfer information). But if the government knows you have the calendar, however, because your sister testified that you keep a calendar of revolutionary meetings, then producing it becomes a pure action. [1] I'd actually argue that the gist of the 5th amendment is even narrower than that: the government literally can't put you on the stand to testify against yourself, or enter into evidence a coerced confession. That's it.
hackuser 10y ago
And for ease of reading, I'll reply to my own comment with other interesting issues: * "The fact remains that the government has not brought charges," [his attorney] Donoghue said in a telephone interview. It seems a warrant is at issue, if I understand correctly. * The contempt-of-court order against Rawls was obtained by authorities citing the 1789 All Writs Act. The All Writs Act was the same law the Justice Department asserted in its legal battle with Apple * The authorities, however, said no testimony was needed from Rawls. Rather, they said, (PDF) "he can keep his passwords to himself" and "produce his computer and hard drives in an unencrypted state." * My completely amateur thoughts: If they already can prove he has child porn, then they don't need the additional evidence. If they do need the additional evidence, then he is incriminating himself.
- nickpsecurity 10y ago
  "My completely amateur thoughts: If they already can prove he has child porn, then they don't need the additional evidence. If they do need the additional evidence, then he is incriminating himself." That's a good point. They either have proof he downloaded child porn or they don't. They're definitely trying to do more than prove it. Probably set a precedent increasing their power as usual.
  - Godel_unicode 10y ago
    "so you, Mr expert witness, are telling me that hashes collide? What's that you say, there are actually people who actively look for and produce such hashes for fun?? Ladies and gentlemen of the jury..." And so on. I'm pretty sure pedophile is near the top of the "you better make damn sure they don't get off" list.
    - undersuit 10y ago
      >I'm pretty sure pedophile is near the top of the "you better make damn sure they don't get off" list. It's not illegal to be a pedophile. It's illegal to possess child pornography.
  - PeterisP 10y ago
imh 10y ago
I've never understood the foregone conclusion doctrine. If it's a foregone conclusion, the search should be unnecessary, not a special privilege. IIRC, he also stated that he has forgotten his password (and after 18 months, it has become believable).
- fjdlwlv 10y ago
  It's a forgone conclusion that the Constitution is inconvenient to law enforcement, so they ignore it or try to change its meaning.
- Godel_unicode 10y ago
  The forgotten password is my concern here, God help you if you're an innocent person in this situation! Edit: whether or not it's true in this instance.
Buge 10y ago
The existence of the child porn might be a forgone conclusion, but there is a lot of other stuff on the hard drive. And that other stuff is not a forgone conclusion. So by decrypting the hard drive, he would be giving them information that is not a forgone conclusion.
- mindslight 10y ago
  I believe the persecution would argue that any newly discovered evidence can simply be excluded by the court. The legal system's philosophy is that it should be all-powerful, and that it will parcel out what it deems to be our rights. Of course, Free people know that rights are obtained and maintained by individuals themselves - eg the second amendment.

dongslol 10y ago

The critical question is, why haven't they charged him? It is disingenuous of them to bring up the evidence they currently have essentially in an attempt to demonize him. Their evidence is sufficient or it isn't; if it is they should charge him; if not they're demanding self-incrimination.

rayiner 10y ago
You need to distinguish between requiring the defendant to turn over incriminating evidence (which the 5th amendment does not protect), and requiring the defendant to make incriminating statements (i.e. to provide incriminating testimony). Sometimes, the act of producing evidence in response to a government request involves the defendant making implicit incriminating assertions. If the government says "produce all your cooked accounting books," handing over those documents implicitly communicates the assertions that (1) certain books exist; (2) those books are doctored; and (3) you have ownership/control over them. However, say the government asks you for your bank records. When you hand them over, you're implicitly saying "I have bank records," and "these are my bank records." That's not incriminating -- even if the bank records themselves might contain incriminating evidence. The "foregone conclusion rule," says that the act of production is non-testimonial when the incriminating facts are already known.[1] If the existence of doctored books is already known by other means, the act of producing them doesn't communicate anything to the authorities. The books themselves are obviously communicated, but the 5th amendment does not protect the underlying evidence. It protects the implied statements by the defendant about the underlying evidence. Hence the threading the needle in the opinion. They're not asking the guy to make incriminating statements about the existence of incriminating evidence. They're asking him to turn over the incriminating evidence they already know exists. [1] Note that the Court is not saying "we already know he's guilty so the 5th amendment doesn't apply."
- deleted 10y ago
  [deleted]
- olliej 10y ago
  Quite aside from anything else, can someone explain whether or not the same logic would apply to (for example) asking someone to open a safe vs. the code to open the safe. It seems like this ruling would say that failing to open the safe is functionally the same? As a gratuitously distorted example, lets say i had cooked accounting books in a spreadsheet on my computer, and they were encrypted by a random password that /i/ do not know, but have on a memory stick in a safe. It seems that logically that would be equivalent, but i also am very much not a lawyer so am perfectly willing to accept i am missing nuance of the law. Outside of the law i don't like the forgone conclusion stuff - for example, revolution period you could say hanging out with revolutionaries regularly could reasonably conclude your documents include a calendar for revolutionary meetings so you should be required to provide that information and/or information required to receive that. Obviously that's some contorted logic but i don't think it's that far removed from this. I would argue that a hash match should be sufficient, and i would be convinced that (absent other information and details) this was evidence that he's a pedo, but i can see how a lawyer could create reasonable doubt where in reality there is none (specifically referring to hashes here, nothing else). Of course i can't serve on a jury (and apparently knowing what you're talking about may be disqualifying? :-/)
  - rayiner 10y ago
    > Quite aside from anything else, can someone explain whether or not the same logic would apply to (for example) asking someone to open a safe vs. the code to open the safe. It seems like this ruling would say that failing to open the safe is functionally the same? Basically, judges don't agree on which way this scenario comes out. > Outside of the law i don't like the forgone conclusion stuff - for example, revolution period you could say hanging out with revolutionaries regularly could reasonably conclude your documents include a calendar for revolutionary meetings so you should be required to provide that information and/or information required to receive that. The "foregone conclusion" stuff is narrower than Ars makes it out to be. The gist of the 5th amendment is that the government can make a defendant do things but not transfer information.[1] Sometimes, an action can implicitly transfer information. The foregone conclusion rule just says that if the government already has the information, then the action does not additionally transfer information. In your hypothetical, the foregone conclusion rule would not apply because even if the government "could reasonably conclude" that you have a calendar, producing it would still confirm that conjecture (and thus transfer information). But if the government knows you have the calendar, however, because your sister testified that you keep a calendar of revolutionary meetings, then producing it becomes a pure action. [1] I'd actually argue that the gist of the 5th amendment is even narrower than that: the government literally can't put you on the stand to testify against yourself, or enter into evidence a coerced confession. That's it.

hackuser 10y ago

And for ease of reading, I'll reply to my own comment with other interesting issues: * "The fact remains that the government has not brought charges," [his attorney] Donoghue said in a telephone interview. It seems a warrant is at issue, if I understand correctly. * The contempt-of-court order against Rawls was obtained by authorities citing the 1789 All Writs Act. The All Writs Act was the same law the Justice Department asserted in its legal battle with Apple * The authorities, however, said no testimony was needed from Rawls. Rather, they said, (PDF) "he can keep his passwords to himself" and "produce his computer and hard drives in an unencrypted state." * My completely amateur thoughts: If they already can prove he has child porn, then they don't need the additional evidence. If they do need the additional evidence, then he is incriminating himself.

nickpsecurity 10y ago
"My completely amateur thoughts: If they already can prove he has child porn, then they don't need the additional evidence. If they do need the additional evidence, then he is incriminating himself." That's a good point. They either have proof he downloaded child porn or they don't. They're definitely trying to do more than prove it. Probably set a precedent increasing their power as usual.
- Godel_unicode 10y ago
  "so you, Mr expert witness, are telling me that hashes collide? What's that you say, there are actually people who actively look for and produce such hashes for fun?? Ladies and gentlemen of the jury..." And so on. I'm pretty sure pedophile is near the top of the "you better make damn sure they don't get off" list.
  - undersuit 10y ago
    >I'm pretty sure pedophile is near the top of the "you better make damn sure they don't get off" list. It's not illegal to be a pedophile. It's illegal to possess child pornography.
- PeterisP 10y ago

imh 10y ago

I've never understood the foregone conclusion doctrine. If it's a foregone conclusion, the search should be unnecessary, not a special privilege. IIRC, he also stated that he has forgotten his password (and after 18 months, it has become believable).

fjdlwlv 10y ago
It's a forgone conclusion that the Constitution is inconvenient to law enforcement, so they ignore it or try to change its meaning.
Godel_unicode 10y ago
The forgotten password is my concern here, God help you if you're an innocent person in this situation! Edit: whether or not it's true in this instance.

Buge 10y ago

The existence of the child porn might be a forgone conclusion, but there is a lot of other stuff on the hard drive. And that other stuff is not a forgone conclusion. So by decrypting the hard drive, he would be giving them information that is not a forgone conclusion.

mindslight 10y ago
I believe the persecution would argue that any newly discovered evidence can simply be excluded by the court. The legal system's philosophy is that it should be all-powerful, and that it will parcel out what it deems to be our rights. Of course, Free people know that rights are obtained and maintained by individuals themselves - eg the second amendment.