So the police no longer need to plant drugs. They can just plant encrypted hard drives to which you have 'forgotten' the password. Hard-drives containing hashes of 'bad' pics. And then you can spend your life in jail (unless you plead guilty) ?
The question isn't if this particular man is guilty, it's if investigators and judges have the constitutional authority to sentence a person to life in prison because they think that a person remembers a password they say they don't remember.
The judge's ruling says essentially what you're saying... there's enough evidence already that he considers it a foregone conclusion that there is child porn on the encrypted hard disk.
The only problem I have with this argument is that if it is such compelling evidence why not send the case to trial and let a jury decide?
You have misunderstood what "foregone conclusion" means in this case. It is not a foregone conclusion that this is child porn on the disks. It is a foregone conclusion that there is something on the disks and that something is encrypted with a password known by the defendant.
The author of the arstechnica piece (who, unlike the author of the Washington Post piece, is not a laywer) hasn't really explained things well. It's worth reading the actual decision from the court[1].
A relavent paragraph:
In Fisher, however, the Court also articulated the “foregone conclusion” rule, which acts as an exception to the otherwise applicable act-of-production doctrine. Fisher, 425 U.S. at 411. Under this rule, the Fifth Amendment does not
protect an act of production when any potentially testimonial component of the act of production—such as the existence, custody, and authenticity of evidence—is a “foregone conclusion” that “adds little or nothing to the sum total of the Government’s information.” Id. For the rule to apply, the Government must be able to “describe with reasonable particularity” the documents or evidence it seeks to compel. Hubbell, 530 U.S. at 30.
Note that the issue with this question is the "existence, custody, and authenticity" of the evidence not its actual contents.
Because you can only send this case to a jury once without triggering double jeopardy, so the state has an interest in sending the strongest case it reasonably can.
If they're going to do that, they might as well just leave the pictures unencrypted. I don't see how encrypting it and then going through all these gymnastics in court helps them; in fact doing that seems like a good way to draw unnecessary attention to the frame job.
I mean, he could have testified at the contempt hearing or presented any sort of evidence that he just plain forgot the password, and the court might have heard that. He opted to not testify or introduce any testimony at this hearing. So that court hearing did not seriously consider memory failure because the defendant did not seriously assert it.
(Of course if he was lying about the failure of his memory, that assertion might have gotten him into more hot water -- it would potentially be a perjury charge. But we should not say definitely "he was lying when he said that to police" but just "he didn't make that case for himself at court," if I'm reading these court documents right.)
Just to give the relevant excerpts, the supplemental order that the judge issued to explain his reason for the contempt order states that he's using a well-established legal framework for figuring out memory-failure type contempt cases, quoting one of those cases directly as:
> A civil contempt proceeding on a witness' asserted memory loss requires a three-step analysis that shifts the burden of production to the witness, but always leaves the burden of proof with the government. First, the government must make a prima facie[1] showing of contempt; i.e., that it made an authorized request for
information, that the information was relevant to the proceedings, that the information was not already in the possession of the government, and that the witness did not comply. Second, once the government has presented its prima facie case, the witness must provide some explanation on the record for his failure to comply. If the witness fails to meet this "burden of producing evidence," the government's prima facie case is sufficient to meet its burden of proof for a finding of contempt. The witness may meet his burden, however, where, as here, he testifies that he does not remember the events in question. Finally, if the witness meets his burden of production by claiming a loss of memory, the government must carry its burden of proof
for a finding of contempt by demonstrating that the witness in fact did remember the events in question, thereby establishing a willful
failure to comply.
Note that testifying "I don't remember the password" is enough to activate part two. The supplemental order then goes on to apply this in the only obvious way,
> [first, ] the Government's prima facie case of contempt was largely, if not entirely, uncontested ... [second, ] at the September 30th
Contempt Hearing, Mr. Rawls did not testify or call any witnesses, he did not offer any documentary or physical evidence into the record, and the only evidence he elicited was in the form of cross-examination of the Government's witnesses. Crucially, Mr. Rawls offered no on-the-record explanation for his present failure to comply with the August 27th Order... [therefore, ] in light of the Government satisfying its burden of proof, the Court adjudged Mr. Rawls to be in civil contempt of court.
[1] prima facie is a phrase which one might not be familiar with unless one has a philosophy or legal background; it means "at first glance" -- i.e. the government's showing might at a deeper stage be questioned but it has to "look like" contempt in order to start the process.
One way would be to bang your head into the wall and cause an injury serious enough that a doctor could testify that you have brain damage and therefore memory loss.
If I was innocent, and legitimately forgot my password, and faced an indefinite time locked away, I would probably actually consider that as an option. Now that act itself could be an act of contempt, but then again you could always use the excuse that someone else did it to you. Or you could pick a sufficiently damaging fight with another inmate or guard.
If indefinite imprisonment can result from one's failure to prove that one does not remember (or never knew) some piece of information, I consider that a serious flaw in our legal system.
As the note at the bottom of the article implies, "hashes" of files on an encrypted disk? WTF?
"Bleeping Computer users have pointed out that you cannot match file hashes to encrypted content. The article was updated with a link to court documents from where the prosecution's statement was cited."
They have to convince a court beyond reasonable doubt that you know the password, AFAIK. An extreme example would be pulling the power plug on a computer you're using as the police arrive: you'd be hard pushed to convince a jury beyond reasonable doubt that you don't know it. Of course, shades of gray, etc.
Maybe if you kept a live Linux USB bootable drive plugged in at all times, you could say that you can't access the installed OS...might have a problem with time-stamps and such but that should be fixable
It's odd that you can be required to prove your own innocence beyond reasonable doubt. I would have sworn that it was supposed to work the other way around.
Did you read? He showed the pictures to his sister so the court is reasonable certain that he does know the password. If that's the case then he lied to police which is an offense in itself.
