Former Policeman Imprisoned for Withholding Password

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Francis Rawls was once a police sergeant with the Philadelphia Police Department, where he served for 17 years. Now, he spends 22 and a half hours of every day completely alone. If someone visits him, they have to remain behind a barrier. Each month, he's granted one fifteen minute phone call. Thus far, he's had the opportunity to chat on the phone for an hour and forty-five minutes, because he's been in solitary confinement for the past seven months.

 

The reason? He won't give away the passwords to his encrypted hard drives, which were seized as part of a child pornography investigation, Gizmodo reported. According to court records, he's being held in contempt for not complying with a court order, issued on Aug. 27, 2015. An anonymous source told the website Rawls is in solitary due to fears for his safety in the prison's general population, as he's a former police officer.

 

His attorney, federal public defender Keith Donoghue, declined to comment on Rawls's imprisonment, specifically his solitary confinement.

 

Early last year Rawls's home was raided and his Apple Mac Pro, a Mac Mini, an iPhone 5s and two external hard drives were seized. Though it remains unclear if this is connected, the Office of the District Attorney for Delaware County was conducting surveillance of the "Freenet," which is similar to Tor or the "deep Web." It's a place where users can "anonymously share files, browse and publish 'freesites,'" according to its official web page. Those websites aren't accessible by traditional means, and they aren't indexed by Google, Yahoo! and the like.

 

The idea is that the communications are encrypted, so it's nearly impossible to identify who is who online -- like a secret code that only certain computers (and people) can understand. It's often used to trade illegal goods such as firearms, drugs and child pornography, Tech Central reported.

 

Rawls is suspected of possessing child pornography. But he's not been charged with any crime.

 

According to an appeal filed on Tuesday, in which Rawls is referred to as "John Doe," the case began in Delaware County, Pa., where investigators attempted to force Rawls to give up passwords in order to decrypt the devices and access the contents of the hard drives. Rawls's sister testified that he had allowed family members to view content on an iPhone 6, which "allegedly focus on the clothed genital area of two nieces, aged four and six," the appeal states. Officers also seized this phone.

Rawls refused to offer his passwords, invoking his Fifth Amendment privilege against self-incrimination, an argument supported by Judge Chad F. Kennedy of the Court of Common Pleas.

 

The judge wrote that Rawls "has properly invoked the Fifth Amendment privilege against self-incrimination when indicating that he would neither perform the act of decrypting the electronic devices, seized by the Commonwealth, nor provide the passwords to the Grand Jury for the electronic devices."

 

On July 29, 2015, federal investigators obtained a warrant for the computer equipment seized in Philadelphia, the Philadelphia Inquirer reported.

 

"Investigators turned to federal court, where an Assistant United States Attorney," citing the All Writs Act, issued an "order commanding Mr. Doe to decrypt and produce the contents of the iPhone seized at the family gathering, the Mac Pro, and the external hard drives," the appeal states.

For context, the All Writs Act, written in 1789, was used by the Department of Justice in an attempt to force Apple to unlock an iPhone connected with the San Bernardino, Calif., shooting. Some think using this writ to compel testimony is a slippery slope.

 

"If the writ can compel Apple to write customized software to unlock a phone, where does it end?" Ahmed Ghappour, a professor at the University of California's Hastings College of the Law told The Post in February. "Can the government use it to compel Facebook to customize an algorithm that predicts crime? It's not clear where the line will be drawn, if at all."

 

Rawls filed an appeal against the writ, but on August 27, 2015, Rawls's request for reconsideration of the order was denied by U.S. Magistrate Judge Thomas Rueter.

 

"The courts hold that the act of production of encryption codes is not testimony" under the Fifth Amendment, he stated. "Even if this production conveys a fact regarding the possession or authenticity of the images contained in the electronic devices -- if the government can show with 'reasonable particularity' that, at the time it sought to compel the assistance of Mr. Rawls, it already knew of the materials, thereby making any testimonial aspect a 'foregone conclusion.'"

 

In other words, if the government already knows there's child pornography on Rawls's hard drives, then it's not self-incrimination for Rawls to give his passwords. Think of it like a search warrant: if an officer of the law is granted a search warrant to someone's house, then that suspected party has no recourse but to allow the officer enter his house. Much like that hypothetical person wouldn't be able to lock the door, Judge Rueter ruled that Rawls can't refuse to provide the passwords.

Following this order, Rawls unlocked the iPhone 6 from the family gathering but claimed not to remember his passwords to the other devices.

 

On Oct. 5, 2015, a judge ordered that Rawls be incarcerated until he provides the passwords. "It has long been recognized that courts possess the inherent authority to hold persons in contempt," the court wrote.

 

Rawls was "remanded to the custody of the United States Marshals to be incarcerated until such time that he fully complies with the order to provide his encryption passwords to investigators."

Donoghue has requested his client be released, writing in a brief outlining his appeal, "Not only is [Rawls] presently being held without charges, but he has never in his life been charged with a crime."

 

For now, Rawls sits in solitary confinement as he awaits the results of the appeal filed Tuesday.

 

"We are hopeful the appeal will result in our client's prompt release from the confinement that was ordered after he invoked his Fifth Amendment right against self-incrimination," Donoghue told The Washington Post.

 

Arguments abound concerning the delicate balance between digital privacy and law enforcement, what counts as testimony versus what is collectible evidence, what digital information is protected and what isn't.

 

This isn't the first time this specific argument has appeared, either. In 2012, after two years of legal battles, a federal judge forced Ramona Fricosu to decrypt her hard drive, even though she also attempted to invoke the Fifth Amendment. She was being prosecuted for mortgage fraud. The ruling by U.S. District Judge Robert Blackburn also cited the All Writs Act.

 

"I find and conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer," the ruling states. "It is clear that the All Writs Act enables the court to issue orders to effectuate an existing search warrant."

 

Recently, the aforementioned legal battle in which the government attempted to compel Apple to unlock an iPhone of one of the San Bernardino, Calif., shooters brought this type of conversation to the national forefront. And it's continuing.

As one example, on Wednesday, the House of Representatives unanimously passed the Email Privacy Act, which "amends the Electronic Communications Privacy Act of 1986 to prohibit a provider of remote computing service or electronic communication service to the public from knowingly divulging to a governmental entity the contents of any communication that is in electronic storage or otherwise maintained by the provider, subject to exceptions."

 

In layman's terms, it would obligate law enforcement to obtain a search warrant to acquire any emails or data stored in the cloud. A loophole created by the Electronic Communications Privacy Act of 1986 allowed law enforcement agencies to obtain these digital materials without a warrant if they were more than 180 days old.

 

But technology is often moving more quickly than lawmakers, as evidenced by the many rulings in Rawls's case. Some companies are, as well. Ars Technica reports of the Email Privacy Act: "Because of varying precedent on whether a warrant is required already, many companies, including Google, already demand one."

 

As the world becomes increasingly digital, these arguments will continue to blossom.

 

 

 

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