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There's a better article in Ars: https://arstechnica.com/tech-policy/2017/03/man-jailed-indefinitely-for-refusing-to-decrypt-hard-drives-loses-appeal/ https://

There's a better article in Ars: https://arstechnica.com/tech-policy/2017/03/man-jailed-indefinitely-for-refusing-to-decrypt-hard-drives-loses-appeal/ https://arstechnica.com/tech-policy/2017/03/man-jailed-indef... From that article: > 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 her 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. And then this from Rawls' public defender: > "The fact remains that the government has not brought charges," Donoghue said in a telephone interview. "Our client has now been in custody for almost 18 months based on his assertion of his Fifth Amendment right against compelled self-incrimination." There are numerous quotes from Comey and many others in the FBI and DOJ who have argued that forced decryption is necessary to catch the bad guys. But here the argument is the exact opposite: the evidence they have is so overwhelming that it is a "foregone conclusion" that more of the same incriminating evidence is on the encrypted drive.

djsumdog 9y ago
Yea, at this point they either need to charge him and take him to court with the evidence they have or release him. There is simply no way to prove he is knowingly withholding a password vs simply forgetting it.
- andylei 9y ago
  its not like he argued he forgot it and the court didn't believe his argument. he didn't even make the claim that he forgot it.
cmiles74 9y ago
Is this all about setting precedent for holding people indefinitely under the All Writs Act? It seems like they'd easily win at trial.
deleted 9y ago
[deleted]
geofft 9y ago
> "The fact remains that the government has not brought charges," Donoghue said in a telephone interview. "Our client has now been in custody for almost 18 months based on his assertion of his Fifth Amendment right against compelled self-incrimination." To be clear (and I am pretty sure the public defender knows this, but is just phrasing it like this for public perception), the prosecution's position is that the Fifth Amendment is irrelevant because they're compelling him to do an act under the All Writs Act and not to testify about anything (produce a password, produce files, etc.). The approach they're taking is that he's a person in a position to do something to let the government access evidence, and it doesn't matter that he's the person they want evidence against, instead of a third party (as with New York Telephone Co., or more recently Apple), and he's in prison for refusing compliance with the writ. It's totally unclear that this legal strategy should work in a just/ideal society, but, at least for now, the courts are allowing it.
- cabaalis 9y ago
  So much for that whole constitution thing anyway.. They can just create some "act" that overrides it! And nobody will complain because the person affected is the bad guy, until they come for them.
  - stinkytaco 9y ago
    But they are not asking him to testify, admit guilt, or anything like that. They aren't even asking him to tell them the password, just to enter the password to decrypt. This is more like expecting access to your house when a search warrant is provided. EDIT: To be clear, it's not that I feel he should necessarily be compelled, but rather that a fifth amendment defense is weak in this case, since it's not a testimony at all, but rather revealing already existing material (as opposed to compelling the defendant to write a confession).
    - dopamean 9y ago
      This may be a dumb question but I want to make sure I'm getting everything here... they have a warrant to search the hard drive?
JorgeGT 9y ago
> 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 her hundreds of pictures and videos of child pornography. The fact that hey have so much evidence and yet they still prefer to lock him up in jail until he decrypts the drive rather than convict him makes me believe this case is intended to provide jurisprudence in order to force other people to unlock encrypted devices in much more dubious cases. Not unlike the "locked iPhone" case where terrorists had destroyed all the devices that could be of interest and yet the FBI went against Apple because the case appeared very good to get support in the public eye (it's to catch terrorists!).
- gtirloni 9y ago
  These issues are often around catching criminals but there's always the issue that they will be abused for something else and we (the common folks) are all at risk. That's plausible. Honest question: It's hard to do risk assessment at my level of ignorance so where can I find major cases where common people have been screwed by the overarching tentacles of govt surveillance in the developed world? Any noteworthy cases I should read about to raise my level of alertness?
  - jancsika 9y ago
    I'm not sure I understand the question. It's not like the NSA is going to shoot a tennis ball at your head if you fail to pay attention to wide-net surveillance. Similarly, the cases where wide-net surveillance has had a detrimental effect on people-- the case of the Stanford student who accidentally got added to the U.S.'s no-fly list comes to mind-- there was probably nothing at all the person could have done to prevent getting screwed.
  - joshribakoff 9y ago
    Most "developed" governments recognize some right to privacy. Counter examples that come to mind would be censorship by governments who surveil internet traffic & lock up "rebels", or governments that go into people's houses without warrants, checking to see if you're harboring people of a "banned" sect. I worked with a developer who had just moved to the USA from Cuba, he told me stories about how they would go around in vans, if they detected illegal wifi signals they would kick in your door & put on a show. If you were sent to prison it would of course involve various forms of torture, like being forced to stand for days on end, according to him. Your question is loaded though, because of course the common person will follow the law & avoid going on the internet.
threatofrain 9y ago
If there is such overwhelming evidence that it's a foregone conclusion, then I wonder why they haven't charged and convicted the man already. Why do they need any cooperation at all?
- mdekkers 9y ago
  If there is such overwhelming evidence that it's a foregone conclusion, then I wonder why they haven't charged and convicted the man already. Why do they need any cooperation at all? It isn't about childporn, or whatever this guy is accused of doing. This is about "you are not doing as you are told, citizen, and we will fuck you up for that". It is about control, in the same way that security theater at airports isn't about security.
Crontab 9y ago
Well, it is also bullshit to require the subject of an investigation to assist in their own investigation. I don't care what the laws says - it's wrong.
- Para2016 9y ago
  They have a warrant to access the device and he won't unlock it. I think he should have to unlock it, sort of like unlocking your house if they have a warrant for searching it. My dislike for police is eclipsed by my dislike for pedophiles. So I'm biased here.

djsumdog 9y ago

Yea, at this point they either need to charge him and take him to court with the evidence they have or release him. There is simply no way to prove he is knowingly withholding a password vs simply forgetting it.

andylei 9y ago
its not like he argued he forgot it and the court didn't believe his argument. he didn't even make the claim that he forgot it.

cmiles74 9y ago

Is this all about setting precedent for holding people indefinitely under the All Writs Act? It seems like they'd easily win at trial.

deleted 9y ago

[deleted]

geofft 9y ago

> "The fact remains that the government has not brought charges," Donoghue said in a telephone interview. "Our client has now been in custody for almost 18 months based on his assertion of his Fifth Amendment right against compelled self-incrimination." To be clear (and I am pretty sure the public defender knows this, but is just phrasing it like this for public perception), the prosecution's position is that the Fifth Amendment is irrelevant because they're compelling him to do an act under the All Writs Act and not to testify about anything (produce a password, produce files, etc.). The approach they're taking is that he's a person in a position to do something to let the government access evidence, and it doesn't matter that he's the person they want evidence against, instead of a third party (as with New York Telephone Co., or more recently Apple), and he's in prison for refusing compliance with the writ. It's totally unclear that this legal strategy should work in a just/ideal society, but, at least for now, the courts are allowing it.

cabaalis 9y ago
So much for that whole constitution thing anyway.. They can just create some "act" that overrides it! And nobody will complain because the person affected is the bad guy, until they come for them.
- stinkytaco 9y ago
  But they are not asking him to testify, admit guilt, or anything like that. They aren't even asking him to tell them the password, just to enter the password to decrypt. This is more like expecting access to your house when a search warrant is provided. EDIT: To be clear, it's not that I feel he should necessarily be compelled, but rather that a fifth amendment defense is weak in this case, since it's not a testimony at all, but rather revealing already existing material (as opposed to compelling the defendant to write a confession).
  - dopamean 9y ago
    This may be a dumb question but I want to make sure I'm getting everything here... they have a warrant to search the hard drive?

JorgeGT 9y ago

> 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 her hundreds of pictures and videos of child pornography. The fact that hey have so much evidence and yet they still prefer to lock him up in jail until he decrypts the drive rather than convict him makes me believe this case is intended to provide jurisprudence in order to force other people to unlock encrypted devices in much more dubious cases. Not unlike the "locked iPhone" case where terrorists had destroyed all the devices that could be of interest and yet the FBI went against Apple because the case appeared very good to get support in the public eye (it's to catch terrorists!).

gtirloni 9y ago
These issues are often around catching criminals but there's always the issue that they will be abused for something else and we (the common folks) are all at risk. That's plausible. Honest question: It's hard to do risk assessment at my level of ignorance so where can I find major cases where common people have been screwed by the overarching tentacles of govt surveillance in the developed world? Any noteworthy cases I should read about to raise my level of alertness?
- jancsika 9y ago
  I'm not sure I understand the question. It's not like the NSA is going to shoot a tennis ball at your head if you fail to pay attention to wide-net surveillance. Similarly, the cases where wide-net surveillance has had a detrimental effect on people-- the case of the Stanford student who accidentally got added to the U.S.'s no-fly list comes to mind-- there was probably nothing at all the person could have done to prevent getting screwed.
- joshribakoff 9y ago
  Most "developed" governments recognize some right to privacy. Counter examples that come to mind would be censorship by governments who surveil internet traffic & lock up "rebels", or governments that go into people's houses without warrants, checking to see if you're harboring people of a "banned" sect. I worked with a developer who had just moved to the USA from Cuba, he told me stories about how they would go around in vans, if they detected illegal wifi signals they would kick in your door & put on a show. If you were sent to prison it would of course involve various forms of torture, like being forced to stand for days on end, according to him. Your question is loaded though, because of course the common person will follow the law & avoid going on the internet.

threatofrain 9y ago

If there is such overwhelming evidence that it's a foregone conclusion, then I wonder why they haven't charged and convicted the man already. Why do they need any cooperation at all?

mdekkers 9y ago
If there is such overwhelming evidence that it's a foregone conclusion, then I wonder why they haven't charged and convicted the man already. Why do they need any cooperation at all? It isn't about childporn, or whatever this guy is accused of doing. This is about "you are not doing as you are told, citizen, and we will fuck you up for that". It is about control, in the same way that security theater at airports isn't about security.

Crontab 9y ago

Well, it is also bullshit to require the subject of an investigation to assist in their own investigation. I don't care what the laws says - it's wrong.

Para2016 9y ago
They have a warrant to access the device and he won't unlock it. I think he should have to unlock it, sort of like unlocking your house if they have a warrant for searching it. My dislike for police is eclipsed by my dislike for pedophiles. So I'm biased here.