This is interesting, because the case is clearly being structured (intentionally by the government, one presumes) to force the test case of "is compelled decryption legal" onto the most unsympathetic possible defendant.
If the government "knows beyond doubt" that the encrypted drives have CP on them, then they have everything necessary to move forward with a trial without decrypting the drives at all. That satisfies society's legitimate interest in suppressing child porn, while also not trampling all over the legal right to use encryption. Choosing to structure the case in this way, with an appeal to the Supreme Court over a matter that's a technicality in the original case, clearly shows that the goal is to get a precedent for forced decryption, not merely to jail one child porn possessor.
They don't "know beyond doubt" in an absolute sense. They know sure enough to make the encrypted drives content part of the trial in the first place, which is a determination the judge made himself and that wasn't challenged by the defense so far.
At some point the main trial will continue, very probably without the decrypted drives. Then the defense will very very likely argue why the hashes aren't enough proof for possession of illegal files, and they will hear experts statements on the matter on both sides, other evidence for the possession etc. And then a _jury_ will make the judgement, with much more factors and on a very different standard of "beyond doubt".
> the case is clearly being structured (intentionally by the government, one presumes) to force the test case of "is compelled decryption legal" onto the most unsympathetic possible defendant.
This is called strategic litigation for a rule change and is quite common amongst 'repeat-player litigants'. Prosecutors, insurance companies, and even the plaintiffs' bar routinely take unnecessary cases to trial if they think it would set a favorable precedent and also settle cases where they think a trial might set an unfavorable precedent.
If you can be jailed indefinitely for not decrypting a drive then can't you be jailed indefinitely for not remembering your password? That sounds fair.
At the contempt hearing, you are allowed to testify that you do not remember your password, and it puts the burden of proof on the government to prove that you secretly remember your password and are lying to the court when you say that you don't. Of course if you do testify this and you are lying, then that's a perjury charge -- which means that for example if you have told your lawyer that you do remember your password, your lawyer cannot knowingly allow you to lie on the stand and could be disbarred etc. if you do. But assuming that you're not lying and so forth, you can just say "I can't comply with this court order because I don't remember the password" and that will suffice for your defense at your contempt hearing unless the government can meet a strong burden of proof that you secretly do know your password and are lying about it, which you are of course entitled to counterexamine and poke holes in.
Rawls did not testify, at his contempt hearing, that he did not remember his password. He did not testify at all at that hearing. He said prior that he doesn't remember his password to the police, and he has said it afterwards to the media, and he might have even said it to a different judge in these weird follow-up hearings--but he didn't say it at the contempt hearing and as I understand it he didn't appeal this hearing directly to say "well shoot I didn't realize I was getting jailed on a technicality, let's re-do this hearing so that I can testify that I forgot it properly."
There are many reasons that Rawls might not have testified; possibly he has a very good lawyer who is concerned about some bigger issues that Rawls might have to address if he testifies at all; possibly he has a very bad lawyer who did not know that this is how forgot-my-password law works and did not read the Supplemental Order the judge wrote explaining why Rawls is being held in contempt of court. I do not know why he did not testify this. However, testifying this is sufficient to be not held in contempt of court, unless the government can meet a stiff burden of proof that you are lying.
Prosecutors said Rawls has a lot of "chutzpah" to even ask to get out of jail while he appeals the contempt-of-court order to the Supreme Court, which has never decided whether forcing somebody to decrypt hardware amounted to a Fifth Amendment violation.
He's being held in jail on a basis that may violate his constitutional rights, yet he is the one with chutzpah?
Despite Doe’s refusal, f orensic analysts discovered the password to decrypt the Mac Pro Computer , but could not de crypt the external hard drives. [...] The Forensic examination also disclosed that Doe had downloaded thousands of files known by their “hash ” values to be child pornography. 3 The files, however, were not on the Mac Pro, but i nstead had been stored on the encrypted external hard drives. Accordingly, the files themselves could not be accessed.
What I've been able to piece together from the fragments of this case that have been reported by non-technical journalists is that he used some sort of P2P software like BitTorrent to download the files. This P2P software kept the checksums of every downloaded file on his unencrypted drive (basically it stored the torrent files somewhere). The FBI compared the checksums in those file to ones of known CP images and found some number of matches (how many has not been reported from what I've seen).
So it really looks like they've got plenty to convict this guy on the evidence they have, but are refusing to bring the case to trial until he unlocks his external hard drive for some reason.
Things like OS search indices, recently used items databases or thumbnail caches can store hashes of files to identify whether they are up to date and referring to the correct file.
Although I'm sympathetic with the side I think you're on, the legal issue at stake here is much more complex than you are giving credit for, and reasonable people can disagree about this. Courts have apparently found in the past that disclosing a physical key is not a 5th amendment violation whereas disclosing a code (eg the combination to a safe) is. The EFF is apparently of the mind that this is a violation. There's a decent writeup of a different case that raises the same issue here http://www.outsidethebeltway.com/the-fifth-amendment-privacy...
[+] [-] alethiophile|8 years ago|reply
If the government "knows beyond doubt" that the encrypted drives have CP on them, then they have everything necessary to move forward with a trial without decrypting the drives at all. That satisfies society's legitimate interest in suppressing child porn, while also not trampling all over the legal right to use encryption. Choosing to structure the case in this way, with an appeal to the Supreme Court over a matter that's a technicality in the original case, clearly shows that the goal is to get a precedent for forced decryption, not merely to jail one child porn possessor.
[+] [-] jo909|8 years ago|reply
At some point the main trial will continue, very probably without the decrypted drives. Then the defense will very very likely argue why the hashes aren't enough proof for possession of illegal files, and they will hear experts statements on the matter on both sides, other evidence for the possession etc. And then a _jury_ will make the judgement, with much more factors and on a very different standard of "beyond doubt".
[+] [-] abhi3|8 years ago|reply
This is called strategic litigation for a rule change and is quite common amongst 'repeat-player litigants'. Prosecutors, insurance companies, and even the plaintiffs' bar routinely take unnecessary cases to trial if they think it would set a favorable precedent and also settle cases where they think a trial might set an unfavorable precedent.
[+] [-] vonzeppelin|8 years ago|reply
[+] [-] drostie|8 years ago|reply
Rawls did not testify, at his contempt hearing, that he did not remember his password. He did not testify at all at that hearing. He said prior that he doesn't remember his password to the police, and he has said it afterwards to the media, and he might have even said it to a different judge in these weird follow-up hearings--but he didn't say it at the contempt hearing and as I understand it he didn't appeal this hearing directly to say "well shoot I didn't realize I was getting jailed on a technicality, let's re-do this hearing so that I can testify that I forgot it properly."
There are many reasons that Rawls might not have testified; possibly he has a very good lawyer who is concerned about some bigger issues that Rawls might have to address if he testifies at all; possibly he has a very bad lawyer who did not know that this is how forgot-my-password law works and did not read the Supplemental Order the judge wrote explaining why Rawls is being held in contempt of court. I do not know why he did not testify this. However, testifying this is sufficient to be not held in contempt of court, unless the government can meet a stiff burden of proof that you are lying.
[+] [-] TomK32|8 years ago|reply
[+] [-] Johnny555|8 years ago|reply
He's being held in jail on a basis that may violate his constitutional rights, yet he is the one with chutzpah?
[+] [-] kazinator|8 years ago|reply
[+] [-] jo909|8 years ago|reply
http://www2.ca3.uscourts.gov/opinarch/153537p.pdf
Despite Doe’s refusal, f orensic analysts discovered the password to decrypt the Mac Pro Computer , but could not de crypt the external hard drives. [...] The Forensic examination also disclosed that Doe had downloaded thousands of files known by their “hash ” values to be child pornography. 3 The files, however, were not on the Mac Pro, but i nstead had been stored on the encrypted external hard drives. Accordingly, the files themselves could not be accessed.
[+] [-] jandrese|8 years ago|reply
So it really looks like they've got plenty to convict this guy on the evidence they have, but are refusing to bring the case to trial until he unlocks his external hard drive for some reason.
[+] [-] wohlergehen|8 years ago|reply
[+] [-] koenigdavidmj|8 years ago|reply
[+] [-] jotato|8 years ago|reply
[+] [-] rufusroflpunch|8 years ago|reply
[+] [-] seanhunter|8 years ago|reply
[+] [-] crb002|8 years ago|reply
[+] [-] imglorp|8 years ago|reply