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Sep 19 2017   11:33AM GMT

Forget Your Password, Go to Jail

Sharon Fisher Sharon Fisher Profile: Sharon Fisher


Remember the guy who got put in jail for contempt for forgetting his hard disk drive encryption passwords? He’s still in there, and doesn’t have any prospects for getting out anytime soon.

Francis Rawls, a former sergeant in the 16th district of the Philadelphia Police Department, was accused of having child pornography on two encrypted Macintosh hard drives, which were seized in March, 2015. He was ordered by a judge in August, 2015, to provide the passcode to decrypt the drives, but he claims to not remember it. He was put in jail for contempt of court. Prosecutors claim Rawls is “forgetting” his password on purpose to keep from being charged with possessing child pornography, which could put him in prison for 20 years.

Earlier this year, Rawls appealed the ruling, and it was denied. More recently, he attempted to be let out of prison by claiming that there was an 18-month limit on how long someone could be jailed for contempt of court. In addition, in the meantime, he hopes that the case will eventually go to the Supreme Court.

Prosecutors said, though, that his claims weren’t valid because the precedent he was citing had to do with someone who was a witness, and Rawls wasn’t a witness. In fact, prosecutors have defined the case very narrowly in a way that doesn’t give him a lot of protection. “After the government had seized the contemnor’s computers and was unable to decrypt several of the hard drives, it filed a motion with Judge Rueter under the All Writs Act, 28 U.S.C. § 1651, for an order directing Rawls to produce a decrypted copy of the hard drives,” notes a recent briefing. “The procedural posture is significant. The government did not proceed before the grand jury. It did not subpoena him as a witness.”

As you may recall, the whole legal issue of whether people can be compelled to give up their passwords is still being fought in the courts. Courts have been deciding back and forth on the issue for several years now, with some ruling that a phone password is more like the combination to a safe than a physical object such as a key. It matters because something that is the expression of one’s mind, like the combination to a safe, is protected under your Fifth Amendment rights not to incriminate yourself. A physical key, something you possess, is something you can be forced to produce.

In this particular case, prosecutors are claiming that the Fifth Amendment doesn’t apply because it is a “foregone conclusion” that the hard disk drives contain child pornography. That’s because, even though they can’t read the files, they know what the encryption scheme hashes them to. And the hashes of those files apparently are equivalent to the hashes of other common child pornography files.

The appeals court earlier this year also found that the Fifth Amendment doesn’t apply because Rawls didn’t use that defense in the first place, when he showed up to decrypt the hard disk drives and then said he couldn’t remember the passwords. “[B]y failing to appeal the original All Writs Act order or to raise the Fifth Amendment as a defense to the contempt proceeding, he had procedurally defaulted on his Fifth Amendment challenge,” prosecutors write.

Not to mention, prosecutors – who made a point of defining the term “chutzpah” in their briefing and applying it to Rawls – set a new definition for “disingenuous” themselves, by saying it wouldn’t really be “testifying” against himself, because they weren’t really asking for Rawls’ passwords. They were just asking him to type them in. “The government deliberately chose not to call Rawls as a ‘witness’ to minimize Fifth Amendment issues,” prosecutors write. Those Fifth Amendment “issues” being his ability to use it to protect himself. “Thus, the government did not seek to compel him to produce his password. Rather, it sought to compel him to perform a physical act.” That “physical act” being typing in his passwords.

Right. I’m not robbing you, because I’m not asking for your money. I’m just asking you to take it out of your wallet and put it on the table, which happens to be within my reach.

(Though I do have to thank prosecutors for teaching me a new word: “contumacious” – stubbornly or willfully disobedient to authority.)

Prosecutors also implied that 18 months for contempt was nothing, citing other cases where people had been jailed for five years and seven years for contempt. And because Rawl has already lost in appeals court, they are not sanguine that the case will ever make it to the Supreme Court, they add.

Earlier this month, Judge Cynthia Rufe agreed with prosecutors, citing the finding of the previous appeal as the reason. “The ruling of the Court of Appeals compels the conclusion that Mr. Rawls is not a witness to a proceeding as contemplated by § 1826, and that the 18-month limitation therefore does not apply to this matter,” she writes. “This matter exists before the Court solely because Mr. Rawls has prevented the search warrant from being fully executed.”

Consequently, Rawls stays in jail, though prosecutors said they should check in on him now and then to see if, after two years of largely solitary confinement, he suddenly remembers his passwords. “Theoretically, he could be held in jail for contempt forever … until he’s dead,” Dan Terzian, a lawyer from Duane Morris, tells Olivia Solon in The Guardian.

The moral of the story? Don’t forget your password. You could go to jail.

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