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This article was published on April 27, 2016

Man jailed for not decrypting drive proves US is just making shit up as it goes

Man jailed for not decrypting drive proves US is just making shit up as it goes
Bryan Clark
Story by

Bryan Clark

Former Managing Editor, TNW

Bryan is a freelance journalist. Bryan is a freelance journalist.

Most of the world first heard the term ‘All Writs Act’ during Apple and the FBI’s recent showdown. Others, like a Philadelphia man have known about it for at least the last several months, as the US government is using it to hold him indefinitely for failing to decrypt a hard drive.

The government used the All Writs Act of 1789 to compel the suspect — a former Philadelphia Police Department sergeant — to unlock two hard drives it believed contained depictions of child sex abuse. After refusing, the suspect has been held — without charges — for the past seven months and will continue to be jailed “until such time that he fully complies” with the decryption order.

Before we continue, let’s just get this on the record: this isn’t an argument that we should protect child abusers or that owning, viewing or creating images of child sex abuse is acceptable — it’s not — but the US constitution reminds us that we’re all created equal. Whether a terrorist, school shooter, or yes, even a pedophile — we’re all entitled to the rights laid out in our constitution.

Selective enforcement

Apple Tim Cook
Credit: Apple

By jailing the suspect, we’re overlooking the fact that the US Government recently used the same piece of legislation to compel a company, Apple, to assist the FBI in unlocking the San Bernardino shooter’s iPhone — a motion that Apple refused to comply with.

Much like the Philadelphia case, Tim Cook and Apple were issued a motion to comply citing the All Writs Act as the precedent for the request. Cook declined, and wasn’t even remotely threatened with jail time — although that didn’t stop speculation that he could be.

If the next argument is that Tim Cook represented a company, while the former Philadelphia cop was an individual — it doesn’t matter; the Supreme Court still holds true to a 2010 stance — Citizens United v. Federal Election Commission — that declared corporations were to be treated as people.

It’s not entirely apples-to-apples, as the Citizens United ruling was actually meant to give corporations the ability to make political expenditures, as protected by the First Amendment. But the distinction has been made that the two entities should be treated the same — or to paint in broader strokes, the two shouldn’t be treated differently, a principle known as Corporate Personhood.

The Fifth Amendment

Credit: Billion Photos / Shutterstock

Even if you believe the Citizens United ruling didn’t make people and corporations the same in all regards — thus nullifying the Apple argument — there’s still another 200-plus year old document that supersedes the All Writs Act: The Constitution.

The Fifth Amendment of the constitution states, unequivocally:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

That’s obviously not the case in the Philadelphia proceedings.

By forcing the suspect to decrypt the drives, the government strips him of his Fifth Amendment rights that protect him from self incrimination.

The man in question could very well be guilty of the crime, but he’s protected from this exact exercise in the very document the courts are sworn to uphold: The US Constitution.

Weighing in on the subject in an amicus brief, the Electronic Frontier Foundation (EFF) states:

“… 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.”

It’s hard to argue the EFF’s logic.

The need for better legislation

U.S. Capitol In Washington

To date, encryption hasn’t really been challenged by the Supreme Court. The closest we came was a 2000 case that said a suspect couldn’t be forced to “disclose the sequence of numbers that will open a combination lock.”

A federal court decision in 2012, however, did require a bank-fraud defendant to decrypt her laptop — a ruling that wasn’t enforced after the authorities obtained the password on their own.

That leaves us with two partial matches with nothing truly providing an answer to whether any of us can — or should — be forced to decrypt technology that could lead to self-incrimination. We need a better solution, a comprehensive look at the technology-driven world we live in that better addresses the needs of today’s citizens than the All Writs Act, a document written in 1789.

We came close with Apple and the FBI, a ruling would have provided actual real-world precedent for further discussion. We may still get there — the FBI has other cases it could request Apple’s assistance with — but for the time being, we’re in a state of flux without a clear answer to what our rights are, and in what instances we should be compelled to assist authorities, especially when this assistance could lead to incriminating ourselves.

If you’re confused, you should be. The government is too, but the major difference is, unlike the courts, the people can’t make shit up as we go.