Appeals Court Allows Man To Be Jailed Indefinitely For Refusing To Decrypt Hard Drives
On Monday, March 20th, the United States Third Circuit Court of Appeals unanimously denied an appeal, by a vote of 3-0, in a case where a former Philadelphia police officer was jailed for invoking his 5th amendment right to remain silent and not incriminate himself by revealing the password of two hard drives that were encrypted with Apple’s FileVault. The Supreme Court had not ruled on the constitutionality of courts ordering defendants to decrypt encrypted files. In 2012, another United States Federal Court, the 10th Circuit Court of Appeals, ordered a defendant to hand over encryption keys, but that order was never enforced.
The man was charged with contempt of court under the authority given to the courts under the All Writs Act of 1789, the same law that federal prosecutors tried to use against Apple last year to force Apple to help decrypt a dead terrorist’s iPhone. The former police officer was in jail for nearly 18 months. He will not be released until the judge lifts the order, or until the order is overturned on an appeal, or if he decides to hand over the decryption keys. The Electronic Frontier Foundation (EFF) has filed an amicus brief with the court in support of the appeal. The EFF requested the man be released from jail for two primary reasons.
In their amicus brief, attorneys for the EFF argued before the court that, “The principles animating the self-incrimination privilege remain as relevant today as they were at our nation’s founding, and the circumstances present here do not justify bending those principles to accommodate present law enforcement desires. Accordingly, the order of the court below should be reversed for two reasons: First, compelled decryption is inherently testimonial because it compels a suspect to use the contents of their mind to translate unintelligible evidence into a form that can be used against them. The Fifth Amendment provides an absolute privilege against such self-incriminating compelled decryption. Second, even if compelled decryption were not inherently testimonial, it would be in this case because complying with the order would communicate facts that are not a foregone conclusion already known to the government.”
The court argued that it is a foregone conclusion that child pornography is located on the two encrypted drives. Law enforcement identified the hash values of files known to contain child pornography and saw that the man was downloading them and sharing them on Freenet. Freenet is a peer-to-peer network that has been around since March of 2000, and has always been touted as censorship-resistant. It is written in Java and provides a decentralized platform to host websites.
Back in 2013 when the Tor hidden service FreedomHosting was attacked and arrests were made, due to the fact that the site hosted child pornography, Freenet’s website claimed that “This … could not happen on Freenet.” Yet it does happen on Freenet, and it has been happening since at least 2011, which means people were being deanonymized at the very same time that the Freenet site was writing that such a thing could not happen on Freenet. According to the Grand Forks Herald, users of Freenet were deanonymized by law enforcement during a child pornography investigation in North Dakota.
The North Dakota Bureau of Criminal Investigation had been running an undercover operation in the network since 2011, planting their own nodes inside Freenet to be able to log people’s IP addresses and trace the final destination of users downloading illegal material. In 2014 ICAC, the Internet Crimes Against Children Task Force, ran a Freenet workshop for law enforcement to present what they called the “Black Ice Project.” According to ICAC’s website the workshop “will describe the basic functioning of Freenet, how persons exchanging child abuse material, the system’s vulnerabilities and how the Black Ice project exploits them.”
The encrypted drives are not the only evidence that prosecutors have against the former police officer. The prosecution has been able to recover an image from the man’s unencrypted MacBook hard drive, and the man’s sister reported that the man had shown her child pornography on his computer. The case could be appealed to the Supreme Court. It is not known if the man plans to appeal.
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