Man Who Refused To Decrypt Hard Drives Is Free After Four Years In Jail (arstechnica.com) 149
An anonymous reader quotes a report from Ars Technica: A Philadelphia man has been freed after a federal appeals court ruled that his continued detention was violating federal law. Francis Rawls, a former police officer, had been in jail since 2015, when a federal judge held him in contempt for failing to decrypt two hard drives taken from his home. The government believes they contain child pornography.
After losing that appeal, Rawls raised another challenge: the federal statute that allows judges to hold witnesses in contempt for refusing to testify, passed in 1970, states that "in no event shall such confinement exceed eighteen months." The government argued that this provision didn't apply to Rawls because he was a suspect, not a witness. Also, the rule applies to a "proceeding before or ancillary to any court or grand jury." But because the government hadn't formally charged Rawls with a crime, the government argued, there was no court proceeding under way. Last week, a three-judge panel of the 3rd Circuit rejected this argument in a 2-1 vote. The court's two-judge majority held that Congress had intended for the 18-month limitation to apply broadly to any legal proceeding, not just a formal trial. And while Rawls was a suspect in the case, he was also a witness. The practical result is that, at least in federal court, someone can only be imprisoned for 18 months for refusing to open an encrypted device. The government says it has other evidence suggesting that Rawls possessed child pornography, "so prosecutors may be able to piece together enough evidence to convict him, even without access to his encrypted hard drives," the report adds. "One of the two judges who formed the 3rd Circuit's majority urged the trial court judge to consider the four years of imprisonment Rawls has already served if he eventually has to sentence Rawls after a child pornography conviction."
After losing that appeal, Rawls raised another challenge: the federal statute that allows judges to hold witnesses in contempt for refusing to testify, passed in 1970, states that "in no event shall such confinement exceed eighteen months." The government argued that this provision didn't apply to Rawls because he was a suspect, not a witness. Also, the rule applies to a "proceeding before or ancillary to any court or grand jury." But because the government hadn't formally charged Rawls with a crime, the government argued, there was no court proceeding under way. Last week, a three-judge panel of the 3rd Circuit rejected this argument in a 2-1 vote. The court's two-judge majority held that Congress had intended for the 18-month limitation to apply broadly to any legal proceeding, not just a formal trial. And while Rawls was a suspect in the case, he was also a witness. The practical result is that, at least in federal court, someone can only be imprisoned for 18 months for refusing to open an encrypted device. The government says it has other evidence suggesting that Rawls possessed child pornography, "so prosecutors may be able to piece together enough evidence to convict him, even without access to his encrypted hard drives," the report adds. "One of the two judges who formed the 3rd Circuit's majority urged the trial court judge to consider the four years of imprisonment Rawls has already served if he eventually has to sentence Rawls after a child pornography conviction."
Maximize prison time (Score:5, Insightful)
Re:Maximize prison time (Score:5, Insightful)
They also have every incentive to protect criminals in uniform. A DA who prosecutes cops is never going to get much help from the police in winning his cases. And winning cases is key to a career in politics, which is the next career step after being a DA.
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I would be in favor of a law that bars prosecutors from further electoral office for 5 years after their term ends.
It might get tricky making something like this constitutional, but perhaps there is some other way of achieving the same goal where being the tough-on-crime DA isn't a good stepping stone to a further political career.
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My first concern is the overabundance of lawyers in government, as opposed to (he says, fantasizing) scientists, doctors, and engineers. A district attorney position is very often a calculated first step on the path of the life-long politician. And life long politicians have a life-long opportunity to be corrupted. Not all are, obviously, even after a life of politics. But the longer one steeps in the DC cesspool, the higher the risk.
My second concern is that DAs facilitate police corruption by allowing pol
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The adversarial system. It mostly works, but isn't without flaws. For one, the prosecutor is often much better resourced. A good defense lawyer is expensive, leading to a justice system where those with wealth are more likely to obtain a favorable outcome.
Re: Maximize prison time (Score:3)
All systems (Score:2)
> leading to a justice system where those with wealth are more likely to obtain a favorable outcome.
Of course that's all systems, of any kind. Having more resources is the ability to better influence an outcome. By the definition of "resources".
Some people try to fight that, to make it so that having power doesn't mean you can get things done, and that's a losing battle. More effective is to increase the resources for everyone generally.
Re:Maximize prison time (Score:5, Insightful)
Re:Maximize prison time (Score:5, Insightful)
nope, because no matter how much people bitch about corruption in politics they vote for it every single fucking damn time without hesitation or moral quandary. both sides, all sides... there is a very real, if my side does it... it is because it is good or a necessary evil. It's only actually evil when the other side does it... no matter who it actually helps.
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OK, 2 hard drives... (Score:2)
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Why not just assume the drives contain a million files each and arrest him for 3 million years?
Witnesses against themselves (Score:4, Interesting)
You can't hold someone in contempt for not testifying against themselves.
The courts even said so: he's a suspect. He can't be compelled to witness against himself.
Re:Witnesses against themselves (Score:5, Informative)
There's a few crimes that trump the constitution apparently
terrorism, drunk driving, carrying large sums of cash, and of course -- CP.
Welcome to the US, you must be new here.
Re:Witnesses against themselves (Score:5, Insightful)
And in a lot of places, it's *any* amount of cash. They've seized $50 in some cases.
But of course, people don't carry much cash anymore, so what's a cop to do? Along comes the ERAD [fortune.com], which will 'forfeit' money right off your cards at the side of the road.
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I've argued repeatedly that there is no difference in criminals. People want to make classifications: white-collar criminals, pedophiles, rapists, murderers, violent repeat offenders, and so on. People who should be treated differently, who should not be given the protections and human dignity a proper justice system must offer.
Such classifications are invalid.
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Seems like an odd thing to argue. You seriously think a jaywalker and multiple murderer are the same?
Or are you trying to argue that every person should have the same rights under the law? That's not the same thing. It's also a much more sensible position.
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Every person not only has the same rights under law, but has the same basic human rights. My argument is society should not look at people as inherently less-valuable.
You say multiple murderers are different? A child lives in poverty, in a high-crime neighborhood. Parents are busy working three jobs, and there are always drugs in the house. The child feels insecure; there is protection: the gangs watch your back. You run drugs, you do a few odd jobs, they keep you safe.
The child is now 25, has been
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Mitigating factors only go so far. Many people go through the same conditions and do not become drug dealers and murderers. I'd suspect the majority of them avoid that path.
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You hit all the emotional argument high points there, didn't you?
To take your example, stripped of the hyperbolic rhetoric, criminals who commit violent crimes, regardless of the mitigating circumstances, need to be prevented from doing violence until they can be rehabilitated. Criminals who commit non-violent crimes, for example the white-collar criminals you alluded to, generally just need to be kept away from the cash box.
Crimes are different. Criminals who commit those crimes are different. They requir
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Most of them, it appears:
https://usa.streetsblog.org/20... [streetsblog.org]
I expect if you're really curious you could Google it for more information.
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Some states do have it as a misdemeanor crime, but some don't even have it as an infraction, unless violating some other statute (typically regarding creating a specific hazard on a road).
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I wasn't really able to find any reference that specified an "INFRACTION" is not a crime, or where in the US that might be the case. I did find several places that refer to infractions, misdemeanours and felonies as different grades of crime. For example: https://www.nolo.com/legal-enc... [nolo.com]
Seems to make the point though that all crimes are not equal, don't you think?
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That principle is enshrined in law (and usually constitutions) in most modern nations.
The idea that every criminal is the same, well, that's pretty silly.
Name one. (Score:5, Informative)
The US is very clear that you can't be compelled to TESTIFY against yourself. You absolutely have to comply with subpoenas duces tecum to produce THINGS that you have in your possession, and other discovery. That is, you DO have to cooperate - just not testify against yourself.
When you produce records pursuant to a subpoena, you aren't allowed to first dump black paint on them, or otherwise obscure them. If you get a subpoena for your business records you have in a spreadsheet and you store your spreadsheet (or classified emails) on an encrypted drive you still have to deliver the records pursuant to the subpoena, not deliver an encrypted drive.
Please name ANY country anywhere in the world that doesn't have subpoenas and suspects don't have to cooperate with legal process. I don't think you'll find one.
The issue in cases like this one is when is it a THING to be delivered and when is it testimony - speaking evidence which in the person's mind?
Courts have ruled that if there is a drive and it's not proven who the drive belongs to, for Joe to state the password is evidence that it is his drive. That's evidence from his mind, testimony, and therefore protected by the 5th amendment. If Joe admits that it is his drive, and he is capable of producing the spreadsheets and other things that are on the drive, he can be ordered to produce them. That's evidence that is on the drive, not evidence that os in his mind, the court has ruled. Only evidence in one's mind is testimony and therefore protected.
Re:Name one. (Score:5, Interesting)
That's why in this case, they're arguing under the foregone conclusion doctrine. But showing it's your drive isn't enough. They have to know exactly what is there. Specifically. The issue at hand, the precedent was created for when a cop themselves saw CP; does the doctrine apply when a civilian witness says they saw what 'appears' to be CP displayed on the computer. Unless they successfully argue that meets the burden of a foregone conclusion, they shouldn't be able to compel the decrypted contents, even if ownership isn't in doubt.
Further complicating the issue is that after some time not using the drive, Rawls claims to no longer remembering the password. If it's clearly your drive, can you be imprisoned for contempt if you cannot remember the password just on the basis the judge (not a jury) doesn't buy it? I'd argue no.
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"this has never been thoroughly addressed by SCOTUS"
This is true, but SCOTUS has already ruled enough to prove that they will definitely sacrifice rights in deference to the almighty power and authority that is the State.
They have ruled a barking dog is enough to wipe their asses with your 4th amendment rights... why do you think they would not wipe their ass with your other rights as well? I for one am just fine with it remaining untested, because once it is tested we know for a fact it will only further
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One of my current teachers is a constitutional conservative who believes all the world's ills are caused by not freezing in time the exact meaning of the Constitution at its inception. He even says the Bill of Rights was a mistake that just gave the government new powers to abuse, and we'd all be better protected from violations of those stated rights if we'd never put them there in the first place.
He continuously argues that the Supreme Court keeps extending its power by ruling that the Constitution giv
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If you get a subpoena for your business records you have in a spreadsheet and you store your spreadsheet (or classified emails) on an encrypted drive you still have to deliver the records pursuant to the subpoena, not deliver an encrypted drive.
Well perfect, then. All they had to do was subpoena them to deliver child porn. I'm not sure how you don't see a problem here.
One specific problem here (Score:3)
The business owner has business records, and the state knows it (or thinks it does, which amounts to the same thing).
They don't know this guy has child pornography on his computer, they think he does.
I think a lot of people aren't able to make that subtle distinction, and they aren't thinking in terms of potential abuses.
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In a very routine case, they know that a business has records. They don't know what is IN those records - that's why they got a warrant and a subpoena, to see what is in the records.
In this case, they know (based on evidence convincing to the judge) that he has the ability to provide the files from the drive. They don't know what is IN those files - that's why they got a warrant and a subpoena, to see what is in the files.
So there is a parallel. I'm actually not sure where I would draw the line here, so I
I would disagree, although a technicality (Score:3)
They know the business has records because that is the way business almost always works. In the example given, only a freakish minority would not.
They know he can decrypt the drives? Yeah, probably, that's the fact-finding function of the presiding judge.
They know there is child pornography on the computer? No. They believe it based on accusatory statements and a forensic analysis of related data, NOT on verification of presence. There are two problems here.
1. People are wrongly accused of crazy shit E
Evidence is before conviction, not after (Score:2)
> They believe it based on accusatory statements and a forensic analysis of related data
Yeah guess what. If I get pulled over and my passenger says to the cop "the driver is crazy - he's swigging whiskey from that Mtn Dew bottle", and the car smells like alcohol, the cop can look in the bottle. Looking in the bottle, looking at rhe evidence, is how we'd determine if I'm driving with an open container or not. The cops do not have to prove beyond a reasonable doubt that it's whiskey before they are allow
Please don't misstate my position (Score:2)
I did not say they don't have probable cause. omnichad did not say they don't have probable cause. That's not what this case is about. It's about them forcing him to give them access to information (the decryption key or password) that exists in his mind, i.e.: testimony.
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You said:
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They know there is child pornography on the computer? No. They believe it based on accusatory statements and a forensic analysis of related data, NOT on verification of presence.
--
Were you saying something relevant to the case, or do you want to cross that comment out and not relevant to the conversation? That sure sounds like you are saying the problem is they don't have proof beyond a reasonable doubt, just high likelihood based on evidence. Which would suggest that proof beyond a reasonable
PS - probably is exactly the legal standard (Score:2)
> For real? I think he's probably guilty
So does the judge, based on the witness and the forensic evidence.
Interestingly, probably (probable cause) is EXACTLY the legal standard for getting the evidence. If the evidence would probably show guilt, the prosecutor can get a subpoena and the person who controls the evidence must hand it over. You agree with the judge that the probable cause standard has been met - that the files probably contain child porn.
AFTER looking at the evidence, the jury or judge the
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The issue with this statement is that if they did know they don't need the files. The same evidence which means they know would be sufficient evidence for a jury to convict. The fact they have convicted him of the crime implies they are either trying to punish him for doing something pointless (not giving them something they don't need) or that they don't in fact k
Probable cause vs beyond a reasonable doubt (Score:2)
They're actually going to trial with the evidence they have, probably. There are actually two different standards of proof involved.
> They believe it based on accusatory statements and a forensic analysis of related data
If I get pulled over and my passenger says to the cop "the driver is crazy - he's swigging whiskey from that Mtn Dew bottle", and the car smells like alcohol, the cop can look in the bottle. Looking in the bottle, looking at rhe evidence, is how we'd determine if I'm driving with an open
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Tell that to the President.
Well the president asked the court to issue one .. (Score:2)
A subpoenas duces tecum is issued by the court.
When Adam Schiff pretended to issue one, while Speaker of the House Nancy Pelosi was saying the House wasn't conducting an investigation, the president asked the court to make a ruling.
Schiff tried to say that it's illegal to ask the court to do a court order order, rather than having the court jester make one in crayon.
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Sub peona = under penalty (Score:2)
A subpoena is an order to provide what the court tells you to provide. It can be issued to any party in a suit, a court officer, or any other party. There are three types of subpoenas
Subpoena ad testificandum - and order to bring testimony. Testimony is evidence (material facts), in words, and is spoken in response by the court.
Subpoena duces tecum - an order to produce items of evidence under your control. This includes words evidence produced before the subpoena.
Deposition Subpoena - an order to appear
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MR. JUSTICE BLACK, concurring.
Adamson v. California, [1947] sets out reasons for my belief that state as well as federal courts and law enforcement officers must obey the Fifth Amendment's command that "No person . . . shall be compelled in any criminal case to be a witness against himself." I think a person is compelled to be a witness against himself not only when he is compelled to testify, but also when as here, incriminating evidence is forcibly taken from him by a contrivance of modern science.
To attempt in this case to distinguish what lawyers call "real evidence" from verbal evidence is to ignore the reasons for excluding coerced confessions. Use of involuntary verbal confessions in State criminal trials is constitutionally obnoxious not only because of their unreliability. They are inadmissible under the Due Process Clause even though statements contained in them may be independently established as true. Coerced confessions offend the community's sense of fair play and decency.
MR. JUSTICE BLACK, concurring.
I am still not persuaded that the Fourth Amendment, standing alone, would be enough to bar the introduction into evidence against an accused of papers and effects seized from him in violation of its commands. For the Fourth Amendment does not itself contain any provision expressly precluding the use of such evidence, and I am extremely doubtful that such a provision could properly be inferred from nothing more than the basic command against unreasonable searches and seizures. Reflection on the problem, however, in the light of cases coming before the Court since Wolf, has led me to conclude that, when the Fourth Amendment's ban against unreasonable searches and seizures is considered together with the Fifth Amendment's ban against compelled self-incrimination, a constitutional basis emerges which not only justifies, but actually requires, the exclusionary rule.
The close interrelationship between the Fourth and Fifth Amendments, as they apply to this problem, has long been recognized and, indeed, was expressly made the ground for this Court's holding in Boyd v. United States. There, the Court fully discussed this relationship and declared itself unable to perceive that the seizure of a man's private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself
Incriminating evidence. You have it. Supply it so we may convict you.
Searches and seizures must be warranted or they are compelling a confession. That you can get a warrant to search someone for evidence does not imply that you can compel them to supply evidence against themselves unless material evidence is different from the verbal evidence of testimony. Several justices have ruled against such practices, including ruling that morphine pills were inadmissible specifically because the police saw the
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> the police dragged the man bodily to the hospital, had a tube forced down his throat, and extracted the pills
Cops forcibly shoving a tube down someone's throat is tad different from a court issuing a subpoena. In fact, if you go to the court clerk's web site, you can pull up the subpoenas filed by the defendant in that very case! They were very much NOT arguing that one doesn't have to comply with a subpoena - they were in fact writing their own subpoenas, like pretty much every lawyer does in every
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The inability of one side to understand basic concepts tends to work against them in getting traction in advocating their point.
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So why isn't half the White House staff serving time right now?
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The Supreme Court has ruled several times that coercing a defendant to provide physical evidence is not distinct from coercing them to provide verbal evidence. The basis of several rulings against State courts was to that effect, and in fact one case drew several previous cases together, threw out prior exceptions, and declared that the Fourth Amendment's search and seizure clause applies to the States because the Fifth Amendment proscribes against forcing testimony from the accused, and an illegal search
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In case of a safe, they can of course just get the "search warrant" (oversized angle grinder) and cut it open.
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And that's wrong. What's the difference between providing a physical key and a mental key?
In Rochin v. California, the Supreme Court found California's evidence inadmissible after they beat Rochin up, forced a tube down his throat, and pulled morphine pills from his stomach. One justice said he doesn't believe "witness against oneself" means only verbal witness, but must necessarily include the forcible extraction of evidence by some contrivance of modern science.
If indeed "witness against oneself" doe
Still being worked out in the courts (Score:2)
Prosecutors and investigators have been arguing this for years. Last time I looked, the law was not super-well settled, but the 5th Amendment protection against self incrimination seems to be winning.
Courts have kind of generally defaulted to saying you must surrender WHAT YOU HAVE (like a physical key) or WHAT YOU ARE (like biometrics, fingerprints, etc.) when presented with a valid court order. Property and identification seem to be readily susceptible to exposure.
They have generally stopped short of requ
Re: Still being worked out in the courts (Score:2)
I have wondered how this will hold up if/when someone invents a helmet that can extract thoughts and memories.
I can quite easily see police pulling a warrant for memories in just about every case. Would be a good thing (assuming it's accurate) until they start looking for unrelated thoughts....
Wait, what? (Score:5, Insightful)
The government argued that this provision didn't apply to Rawls because he was a suspect, not a witness.
Not 100% on how US law works in this case, but in most civilized countries this means that he cannot be forced to cooperate with their own conviction, which also means he cannot be held in contempt for not giving testimony in a case in which he is the suspect (nemo tenetur seipsum prodere). He shouldn't have been jailed, deserves full compensation for his entire term of imprisonment for contempt, and no one else should be jailed for 18 months or even 1 day for refusing to decrypt a hard drive in a case in which they are the suspect.
And no, "child porn" doesn't change any of this.
Child Porn Exemption (Score:2)
If the charge wasn't Child Pornography, it wouldn't have taken 4 years to get this decision, as the charges would have been dropped after a short time.
This is Federal Court (Score:2)
U.S. Attorneys are appointed, not elected.
Your point about the nature of the crime is correct and insightful, however.
Re:Wait, what? (Score:5, Informative)
Now, with Rawls, the government wants to stretch that to when 3rd parties and indirect evidence suggest there is CP, and the suspect can't affirmatively prove his contention he forgot the password is correct, that's also covered under the foregone conclusion doctrine. It's of course bullshit, but it's pretty likely the guy actually does have CP, so what judge wants to let a pedophile off because he's stopping the government from executing the court's warrant?
Re:Wait, what? (Score:5, Insightful)
Re:Wait, what? (Score:4, Insightful)
Isn't this more like probable cause though? If they have probable cause they can get a warrant to enter your home or place of business, search your papers etc.
What is the law regarding assistance in that case? Say you have the keys to the safe and they have a warrant for what is inside it. Say breaking in to the safe is extremely difficult, can they force you to reveal the location of the keys?
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This is an excellent point. The two situations ARE similar in that they both involve a lock and a judicial warrant for that lock.
They're also similar in that there is a limit to how much the authorities can 'force' you. The judge issuing the warrant has the power to jail you for not complying with that warrant. The authorities also have the power to force the locks and potentially even bill you for the cost.
The difference is that the encrypted hard drives were an unbreakable safe. Generally the ability
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I believe the courts in the US have generally held that providing an encryption key is not testifying against yourself. They view it more like compelling a suspect to provide their physical key to a lock box that the government is unable to get into without destroying the contents or compelling a suspect to provide the combination to a safe that the government is unable to get into without destroying the contents.
Possible exceptions are where the government can't show that it's a foregone conclusion that th
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Possible exceptions are where the government can't show that it's a foregone conclusion that the safe or, in this case, hard drive is in fact under the suspect's control and they had access to it. If there is a question about that, providing the combination or encryption key would be providing testimony proving the suspect did have access to and control over the contents.
That's an interesting twisty way to interpret those legal principles... I'm glad that in the Netherlands at least, handing over encryption keys has been explicitly ruled as giving evidence, and falls under laws against self-incrimination.
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You indicated elsewhere that the standard in the Netherlands is "the suspect cannot be forced to help the prosecution", approximately. In the US, the guideline I've seen described is "the suspect cannot be forced to generate new evidence to help the prosecution but can be forced to hand over existing evidence". If you know the suspect owns the safe, then requiring the suspect to provide the key is not new evidence. If you haven't proven the suspect owns the safe, then requiring the suspect to open it is gen
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That your passphrase was a confession would never be admitted as evidence so that's a weak argument. Just because your passphrase is I_Murdered_Steve_Jobs does not mean that you believe that or that it's true. On the other hand, if it was The_Body_Is_Buried_Six_Feet_Under_At_37.334805,-122.009079 that could be used by the police to find the body and find your DNA on it.
Perhaps if you could convince a judge that the text of your passphrase was incriminating, she would appoint an independent special maste
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This is not a "testimony" order, this is a simple cooperation order. You cannot legally be impassioned for refusing to testify against yourself. But you can be jailed for running away from a police officer or attacking a police officer to prevent yourself from being arresting. Similarly barricading your door, etc etc etc. You are required to cooperate with legal officials, it is your speech that is protected, not your goods or actions.
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You are incorrect.
It is perfectly lawful to *KILL* a police officer in order to prevent him from arresting you unlawfully. This is called self-defense.
It is perfectly lawful to *run away* from a police officer if you have not yet been lawfully arrested by that police officer.
It is perfectly lawful to "barricade your door" etc. etc.
You are not required to cooperate with legal officials under any circumstance whatsoever.
Or at least that is how it works in "free" countries with "proper" legal systems. Mayhap
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30 years of "hard on crime" (Score:2)
Disclosure: IANAL.
We in the U.S. are still working this issue out. As it stands, the contents of the suspect's mind is considered 'protected', while almost everything else is fair game for a subpoena. This stems from the wording of the 5th Amendment to the U.S. Constitution which says, in part, that the State cannot force him "to be a witness against himself". 'Witnesses' give testimony, so they can't make him testify. For our purposes here, testify = disclose contents of your mind.
This right has been g
False. Subpoenas work the same in Netherlands (Score:2)
You seem to have a misunderstanding of Netherlands law.
Netherlands law has "right to silence", which is almost exactly the same as the US 5th amendment. Netherlands has subpoenas for evidence exactly like the US does, and you DO have to produce evidence that is under your control pursuant to a subpoena.
Please do feel free to cite any reliable source for "don't have to cooperate with court procedure" because I don't think you're going to find any.
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44. The Court notes that the customs secured Mr Funke’s conviction in order to obtain certain documents which they believed must exist, although they were not certain of the fact. Being unable or unwilling to procure them by some other means, they attempted to compel the applicant himself to provide the evidence of offences he had allegedly committed. The special features of customs law cannot justify such an in-fringement of the right of anyone “charged with a criminal offence”, within the autonomous meaning of this expression in Article 6 (art. 6), to remain silent and not to contribute to incriminating himself.
Under Dutch law you are obliged to provide evidence that exists "independent of the will of the accused", such as a breath or blood sample, or a fingerprint. You do not have to give the PIN to your phone but the police
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> Under Dutch law you are obliged to provide evidence that exists "independent of the will of the accused"
Exactly, just like American law. So please stop posting that "in most civilized countries the accused doesn't have to cooperate" (in reference to a subpoena for evidence) because you know that isn't true.
The files on the drive do in fact exist, despite the fact that the defendant very much wishes they didn't. That's what makes it tricky.
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Though the trial judge should have smacked the prosecutors for trying it in the
Not as broad as stated (Score:2)
This is not quite true. This was decided by the Third Circuit Court of Appeals, not the Supreme Court. Therefore it is precedential only for cases arising in that circuit. So if you live/commit your (potential) crimes anywhere but in Pennsylvania, New Jersey, Delaware, or the Virgin Islands, the federal courts handling your case may come to a different conclusion (al
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It is the custom but not a requirement and circuit splits are not that uncommon. Sometimes they are obvious and intentional due to a difference of opinion and sometimes the fact patterns are different enough that there is some question if it's really a "split".
There's a web site [sundaysplits.com] that offers up a "split of the week" for those who are really bored or really interested.
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What an interesting system. In my country (Canada), courts accept precedent from all the courts in the country, from international courts, and also sometimes from the courts of other countries if they are relevant.
Doesn't it makes things difficult, your courts disagreeing with each other about the same law?
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A great many things in the US are inconsistent regionally or by state, sometimes even by county. And trying to fix that is, for the time being, akin to begging for a fight. It's not going to change short of a major meltdown.
Most Americans identify as Americans, and not by whatever state in which they happen to live. But state governments and the local corruption they enable still think it's a really big deal. In most cases to great waste and inefficiency.
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Laws varying by state, in areas of state jurisdiction, certainly. But federal laws (or at least their interpretation) varying by arbitrary grouping of states seems a little over the top no?
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No. Canadian courts accept obiter from courts that are not precedential. The order of precedent is "federal court", "provincial court", "supreme court of Canada".
So if and only if there are no precedents will a court *consider* what someone else thinks.
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So you're objecting to my use of the phrase "as precedent" to refer to precedents set in other courts? Very well, I revise:
In my country (Canada), courts consider precedents from all the courts in the country, from international courts, and also sometimes from the courts of other countries if they are relevant.
Re: (Score:3)
In most cases, there is no substantial disagreement between circuits. However, about the surest way to get an issue to the Supreme Court is to show that the appeals courts are split on a somewhat important issue. Thus, important splits tend to get resolved. Yes, there is ambiguity in the interim though.
There's some risk that, for example, the Ninth Circuit decided X but you're in the Third Circuit and your case, novel to the Third, may be decided Y and against your wishes. However, that probably puts you in
Why go through the trouble? (Score:4, Insightful)
So then why go through all this trouble about the hard drives? Almost seems like they were more interested in setting a precedent for unencryption than nailing this guy.
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Probably no one wants to try any case based on any he-said-she-said evidence even if the accuser is a police officer. They want hard evidence so they can skip the million dollar trial and just get him to take a plea deal for a few years off his sentence.
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Quite possible. If looking to set a precedent, it makes sense to pick one of the more 'vile' crimes - something which is commonly regarded with such raw emotional hate that a judge is more likely to rule against the suspect, and public sentiment would certainly be against him.
Good (Score:2)
This is a clear case of the rule of law being set right. The way the law is currently worded, The government should have to bring this man before a judge every 18 months to renew the contempt charge or get the data.
But I have to disagree with considering the time currently served, that seems to be a almost completely separate charge and crime and I do not see how the time served for one should effect the other.
they call that justice (Score:3, Insightful)
Maybe not so limited... (Score:2)
The practical result is that, at least in federal court, someone can only be imprisoned for 18 months for refusing to open an encrypted device.
You know how they're going to respond to this?
When a suspect is unable to or refuses to open an encrypted device; they're going to start pursuing multiple separate orders against that suspect instead of just 1 order to open the device, and then multiply the number of contempt charges by separately charging them of multiple separate counts of committing contempt
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Its just a spinning disk full of numbers! They have no meaning!
Context is everything...
It's how we trap the melanistic (Score:2)
Imagine if you're poor and uneducated and being held in jail without bail or in contempt for refusing to testify against yourself. Maybe you'd be ready to sign a confession that the prosecution or police put together on the verbal promise that you could be home by Christmas?
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Hence, why the court rejected the argument and freed him.
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Well yes and no. In some instances we give the accused a break as we assume they do not want to be found guilty so we try and give them some slack for example not forcing them to testify against themselves.
And it is not like we are working off a lower standard of evidence here. Yes, he was imprisoned without a trial, but his crime was witnessed by a judge in a court of law filled with witnesses and records. Technically he was never changed, never had a trial, etc. But for all intents and purposes he did. We
Re: (Score:3)
Re: (Score:2)
You mean the absolute proof he committed the 'crime' of not assisting in his own prosecution?
Yes, the legality of holding him to a contempt ruling does not appear to be in question in this appeal. If his lawyer does not feel that argument is winnable, I am not going to argue with it.
Re: (Score:2)
Twitter is balls too. They "suspended" my account so I can do anything or see anything, and also disabled the ability for me to just delete the account. It's in my own name, too.