US federal prosecutors urged a federal appeals court late Monday to keep a child-porn suspect behind bars—where he already has been for seven months—until he unlocks two hard drives that the government claims contain kid smut.
The suspect, a Philadelphia police sergeant relieved of his duties, has refused to unlock two hard drives and has been in jail ever since a judge's order seven months ago—and after being found in contempt of court. The defendant can remain locked up until a judge lifts the contempt order.
The government said Monday he should remain jailed indefinitely until he complies. The authorities also said that it's not a violation of the man's Fifth Amendment right against compelled self-incrimination because it's a "foregone conclusion" that illegal porn is on the drives and that he is only being asked to unlock the drives, not divulge their passcodes.
"This is not a fishing expedition on the part of the government," federal prosecutors told the 3rd US Circuit Court of Appeals of Philadelphia.
The suspect has not been charged with any child-porn related crimes, yet he is imprisoned in Philadelphia's Federal Detention Center for refusing to decrypt two drives encrypted with Apple's FileVault software in a case that highlights the federal government's war on encryption. A federal magistrate has ordered him imprisoned "until such time that he fully complies" with the decryption order. The man's attorney, Federal Public Defender Keith Donoghue, is demanding that the appeals court immediately release his client from prison because he is being "held without charges." (PDF)
Investigators say they know child porn is on the drives. His sister saw some of it, and the suspect is said to have shown his family an illicit video, too.
The drives, the government said, (PDF) were connected to a Mac Pro.
The defendant, who is referred to as "John Doe" in court papers, claims he forgot the passwords. The suspect's identity is Francis Rawls, according to trial court papers.
The government, however, countered.
In winning the contempt-of-court order, the authorities cited a 1789 law known as the All Writs Act tocompel (PDF) the suspect to decrypt. The All Writs Act was the same law the Justice Department asserted in its legal battle with Apple, in which a magistrate judge ordered Apple to produce code to enable the FBI to decrypt the iPhone used by one of two shooters who killed 14 people at a San Bernardino County government building in December. The case was dropped when the authorities paid a reported $1 million for a hack.
The Supreme Court has never addressed the compelled decryption issue. However, in 2012, a federal appeals court ruled that a financial fraud suspect must decrypt her laptop. The ruling wasn't enforced, as the authorities got the password from a co-defendant.