Indefinite prison for suspect who will not unlock hard drives, feds say

[JDragon]

http://arstechnica.com/tech-policy/...rot-in-prison-for-refusing-to-decrypt-drives/

Now no one will have any sympathy for the suspect in this concrete case because it is about child porn. The general issue is bigger, though:

The suspect has not been charged with any child-porn related crimes, yet he is imprisoned in Philadelphia's Federal Detention Center for refusing to decrypt two drives encrypted with Apple's FileVault software in a case that highlights the federal government's war on encryption. A federal magistrate has ordered him imprisoned "until such time that he fully complies" with the decryption order. The man's attorney, Federal Public Defender Keith Donoghue, is demanding that the appeals court immediately release his client from prison because he is being "held without charges." (PDF)

Investigators say they know child porn is on the drives. His sister saw some of it, and the suspect is said to have shown his family an illicit video, too.

Now I will make explicitly clear I am absolutely happy that this man is behind bars. I repeat: I do not wish to defend this guy. But in my opinion, this is an issue of the right not to incriminate oneself (in the US covered by te 5th amendment).

Yeah the feds disagree:

The government said Monday he should remain jailed indefinitely until he complies. The authorities also said that it's not a violation of the man's Fifth Amendment right against compelled self-incrimination because it's a "foregone conclusion" that illegal porn is on the drives and that he is only being asked to unlock the drives, not divulge their passcodes.

...but their argument does not make sense to me in the least. This, in my opinion, looks like part of a bigger battle to make encryption illegal (which is happening in all countries in the Western world) - something which in my opinion is a bad thing. Not being able to convict all suspected child porn consumers would be uncomfortable, but the price of disallowing privacy (to which making encryption illegal would amount) has even deeper and more profound implications.

 

[PolishHeadlock]

Is this similar to not complying with a warrant?

 

[MicroBrew]

It sets a dangerous precedent when the government can incarcerate indefinitely despite not charging you with a crime . It positively smacks of 3rd world dictatorships .

It appears the US can and does use indefintite detention but for terrorism related cases.
https://en.wikipedia.org/wiki/Indefinite_detention_without_trial

Here they are using it for domestic/non terrorism related cases .

 

[oldshadow]

Like has been said the guy is a shit head.

However I agree they should not be able to hold him.

They should be able to get a warrant and have the company that wrote the program open it for them but not give the government the means to open it.

However the government could in fact find a way to crack the program themselves and with the warrant do so.

As far as I'm concerned forcing him to do so is a violation of his 5th so he is being held illegally.

 

[SleepyBoy]

No sympathy for the scum in prison, but this is ridiculous.

It's basically saying "I know you did something wrong and until you are willing to provide proof of your own wrongdoing, you should be held indefinitely."

How long will it be until ...."I want you in jail, but I can't prove anything. So you either provide me with something to keep you here, or you have to stay here forever without a trial."

 

[Nihilism]

It's no different than a search warrant. He's obstructing justice.

 

[Primitivo]

That guy should stay in prison forever.

 

[Strychnine]

Wow. This is some crazy stuff! With the advent of all of this technology we're going to need a lot of scrutiny at our current laws. I mean seriously? Does the "All Writs act" of 1785 still apply? I think that the company needs to unlock the hard drives and that the suspect should be out of prison, but put on an ankle bracelet.

 

[oldshadow]

It's no different than a search warrant. He's obstructing justice.

No the difference is like them going to your front door and telling you they don't have to search with the warrant they have. You must go and get any evidence you have and bring it to them and if they are not satisfied they will lock you up until they are.

No search warrant requires you to go and get evidence yourself, it just allows them to search for it. This is a protection provided by the 5th.

 

[Nihilism]

No the difference is like them going to your front door and telling you they don't have to search with the warrant they have. You must go and get any evidence you have and bring it to them and if they are not satisfied they will lock you up until they are.

No search warrant requires you to go and get evidence yourself, it just allows them to search for it. This is a protection provided by the 5th.

There are several witnesses identifying illegal activity having taken place on the computer. A search warrant isn't granted based on eye witness testimony?

 

[PolishHeadlock]

No the difference is like them going to your front door and telling you they don't have to search with the warrant they have. You must go and get any evidence you have and bring it to them and if they are not satisfied they will lock you up until they are.

No search warrant requires you to go and get evidence yourself, it just allows them to search for it. This is a protection provided by the 5th.

This seems more like the cops showing up with a warrant and the person barricading themselves in their house.

 

[oldshadow]

There are several witnesses identifying illegal activity having taken place on the computer. A search warrant isn't granted based on eye witness testimony?

And when they get a warrant to search a drug house there are witness to drug deals but they still cannot make you show them where the drugs are. The warrant just gives them the right to search.

 

[tehend]

There are several witnesses identifying illegal activity having taken place on the computer. A search warrant isn't granted based on eye witness testimony?

Sure. He just doesn't have to provide evidence himself. Thats the prosecutions job.

 

[oldshadow]

This seems more like the cops showing up with a warrant and the person barricading themselves in their house.

Like I said it's more like the cops raiding the house and making you show them where you hid the drugs. You don't have to and that's your right. Of course if you don't want them to destroy you home looking for it people sometimes show them.

 

[Nihilism]

And when they get a warrant to search a drug house there are witness to drug deals but they still cannot make you show them where the drugs are. The warrant just gives them the right to search.

The hard drive isn't the drugs, though. The files are. The files are in a safe, so to speak. Does a search warrant not mandate the property owner grant access to a safe on the property just the same?

 

[ShoelessRye]

Should definitely be protected by the Fifth Amendment here. I mean how different is this than saying "we know you buried the body somewhere, it's a foregone conclusion that you killed her - we're just asking you to show us where the body is".

 

[oldshadow]

The hard drive isn't the drugs, though. The files are. The files are in a safe, so to speak. Does a search warrant not mandate the property owner grant access to a safe on the property just the same?

They should not be able to force you to open a locked safe. However they can use whatever means necessary to get it open if they have a warrant to do so.

 

[Nihilism]

They should not be able to force you to open a locked safe. However they can use whatever means necessary to get it open if they have a warrant to do so.

"Should"? Do they have the right or not? If they don't, then the hard drive shouldn't be any different. If they do, then the hard drive shouldn't be any different.

 

[OverCoronavirus Pressure]

I love it how locking your crimes on a hard drive makes them inviolate to half this forum.

 

[oldshadow]

"Should"? Do they have the right or not? If they don't, then the hard drive shouldn't be any different. If they do, then the hard drive shouldn't be any different.

I have not seen a case where the courts forced a person to open a safe for the police but have seen cases where the police opened it themselves.