A man is serving an indefinite sentence in jail for his refusal to comply with a court order requiring him to decrypt two hard drives.
Francis Rawls, a former Philadelphia police sergeant, has served 16 months in the Philadelphia Federal Detention Center. As of this writing, it’s unclear when he will get out. He will likely spend more time behind bars.
According to court documents (PDF), the United States government is holding Rawls in contempt for his refusal to comply with a district judge’s order to decrypt two hard drives.
Back in 2015, law enforcement launched an investigation into Rawls after monitoring the online network Freenet. They believe Rawls has viewed and saved child abuse materials. Consequently, they executed a search warrant at his residence and confiscated his Apple Mac computer, his iPhone 6, and two Western Digital external hard drives.
On 27 August 2015, the United States District Court for the Eastern District of Pennsylvania ordered Rawls to decrypt those two hard drives. When Rawls refused, the court filed for and won a contempt-of-court order that cites the All Writs Act (1789) as grounds for the suspect’s imprisonment. This is the same piece of legislation that the Department of Justice cited in its legal battle with Apple over an iPhone owned by one of the San Bernardino shooters back in 2016.
Rawls has been in prison ever since. In the meantime, his defense attorneys have appealed the sentence. They argue the order violates the Fifth Amendment, which says no one can coerce U.S. citizens into issuing self-incriminating statements.
The U.S. government does not feel its runs up against the Fifth, however. As it explains in a document (PDF) submitted to the United States Court of Appeals for the Third Circuit:
“… [Rawls’s] claim under the Fifth Amendment fails because the All Writs Act order requires no testimony from him. Instead, under the foregone conclusion doctrine, it requires only a nontestimonial act of production. Under that doctrine, an act of production does not implicate the Fifth Amendment where any potentially testimonial component of the act of production is already known to the government.”
Others don’t agree with that assessment. Among them is the Electronic Frontier Foundation, which writes in its own analysis of the case (PDF):
“… 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.”
At this time, the U.S. Court of Appeals has yet to weigh in on Rawls’s case. It may ultimately take the Supreme Court to weigh in on the compelled decryption matter. But until one of those courts does something, Rawls will continue to serve out his indefinite jail sentence.