Suspect refuses to decrypt hard drives, is detained indefinitely

A former Philadelphia Police Department sergeant suspected of possessing child pornography has spent seven months in a detention center without being charged of any particular crime, Ars Techica reports.

His detention, ordered by a US district court judge on civil contempt grounds, will continue until he agrees to provide the passcodes needed to decrypt the hard drives seized in his home when he was arrested on March 2015, or until the US Court of Appeals for the Third Circuit stays the order.

The suspect’s attorney, Federal Public Defender Keith Donoghue, filed a motion to stay the order on Tuesday, arguing that “district court lacked jurisdiction to enter the order commanding [the suspect] to disclose passcodes for the hard drives,” and that even if that wasn’t the case, “the order transgresses the Fifth Amendment guarantee that no person shall be compelled to be a witness against himself.”

He also pointed out that the suspect has never before been charged with a crime and hasn’t been now.

“Because federal law commits pre-indictment investigations to the grand jury, the All Writs Act [invoked by the government in this case] did not supply the district court with jurisdiction to order [the suspect] to divulge the passcodes to the hard drives,” Donohue stated.

Regarding the Fifth Amendment protection, he says that “the Supreme Court precedent already instructs that a suspect may not be compelled to disclose the sequence of numbers that will open a combination lock — clearly auguring the same rule for any compelled disclosure of the sequence of characters constituting an encryption passcode.”

He also notes that, going by previous precedents, in order for the court to compel decryption, the government should prove that the encrypted drives contain files that they are certain it contains – and according to Donohue, they failed to do so.

The two witnesses they produced are the suspect’s sister and a forensic examiner with the Delaware County District Attorney’s Office. The first couldn’t confirm that the child pornography she looked at with the suspect on his computer was located on the encrypted drives, and the second said that it was his “best guess” child pornography would be found on the hard drives.

Finally, he argues that if the motion to stay the order should be denied, it would compound “the irreparable loss of liberty [the suspect] has already suffered”, and that “the contempt judgment will neither impair the government’s opportunity to prosecute [the suspect] (should it ever determine to do so), nor endanger the public.”

In an amicus curiae brief filed with the court by the Electronic Frontier Foundation and the American Civil Liberties Union, the two organizations made the same claims Donohue has regarding the suspect’s Fifth Amendment rigths.

“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,” they say.

“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 foregone conclusions already known to the government.”

It now remains to be seen whether the court will accept these claims.