Get Rid Of The 5th Amendment, For The Children (And Freedom)
May 10, 2016 (Mimesis Law) – The 5th Amendment to the United States Constitution has a whole list of important rights related to criminal cases. Including one that says someone doesn’t have to help the government convict them of a crime:
No person … shall be compelled in any criminal case to be a witness against himself.
Like most of the Bill of Rights, pretty simple. You can’t be forced to tell on yourself. Also like most of the Bill of Rights, years of potshots from judicial opinions have left a simple, basic right riddled with exceptions.
Passwords to the myriad electronic devices people use present a particularly perplexing problem for government prosecutors and the courts, especially when a suspect won’t (or can’t) give it up. The United States Supreme Court has said that the right against self-incrimination “protects a person only against being incriminated by his own compelled testimonial communications.” Turns out you can be forced to be a witness against yourself, just as long as it is not by forcing you to give up testimonial communications. See what happened there?
At least the Supreme Court has recognized that sometimes just an act can be incriminating. If an act of producing something (like a password) implies incriminating facts, such as an admission of possession or control of incriminating documents, the Court has recognized that act is a “protected testimonial communication.”
“You can’t be forced to tell on yourself” turns into “of course you can be forced to tell on yourself as that Amendment doesn’t mean what it says or what you think it says, so actually just shut up and listen and we will tell you when you can remain silent.”
What happens with passwords? Are they protected communications? Are they unprotected because they don’t relay any facts? Decades ago, the Supreme Court noted the difference between a key and a combination.
In our view, such compulsion is more like “be[ing] forced to surrender a key to a strongbox containing incriminating documents” than it is like “be[ing] compelled to reveal the combination to [petitioner’s] wall safe.”
Francis Rawls, former Philadelphia police sergeant, is getting a hard lesson in the modern-day interpretation of the 5th Amendment. Rawls is suspected of possessing child pornography. Everybody knows if someone’s rights are going to be stripped, it’s going to be the dreaded child pornographer. Of course, to properly discard Rawls’ rights in this situation, we need to be cool with getting rid of some other rights, too.
Last August, a federal court ordered Rawls to turn over two hard drives suspected to contain “illegal pornography” (read: kiddie porn). As part of that order, Rawls was supposed to give up the password to the hard drives. The compelling evidence against Rawls so far? The prosecutors’ feelings:
But federal prosecutors, who have a search warrant, believe the hard drives contain “very graphic images” of children engaged in sex acts.
Due process, speedy trial, right against self-incrimination, blah blah blah. Rawls is a suspected kiddie porn enthusiast, and as the comment section of any online newspaper shows, he should be killed or locked under the jail without wasting money on a trial. And his refusing to help the government really screw him makes it even worse. Except it doesn’t actually seem he refused to help. He just forgot his password.
Mr. Rawls was shown to a private room at the district attorney’s office to comply with the order. Once there, according to a court document, he spent most of the time staring at the computer and then said he could not remember the passwords to turn off FileVault, a feature of Macs that encrypts hard drives when a user logs out. He was taken into custody, and this week he started his eighth month in a federal detention center, all without ever being charged with a crime.
Sure, it could be overly convenient that he forgot his password in the little room where they took him to end his life as he knows it. Or, maybe, he really did forget it. Either way, how is this not compelling him to become a witness against himself? Rawls is sitting in jail over a combination, not a key.
It’s one thing to engage in an academic discussion about what happens when Apple refuses to help the government unlock an iPhone. Dead terrorists probably don’t care much about petty earthly things. This is a little more relevant to everyday people. This guy is being told he has to unlock his encrypted data or sit in jail … for how long? Eight months so far. Seems like he would have remembered his password by now if he was going to remember it at all.
Surely this is a rare case. And don’t forget it’s a child porn possessor, so who cares? Well, maybe you should care. It doesn’t affect just those people we can’t stand anyway. Regular old non-child porn offenders get locked away in jail until they decide to give up information they may or may not have, too.
It happened to H. Beatty Chadwick, a former Philadelphia-area lawyer, who has been behind bars for nearly 14 years without being charged.
Businessman Manuel Osete spent nearly three years in an Arizona jail without ever receiving a criminal charge. And investment manager Martin Armstrong faced a similar situation when he was held for more than six years in a Manhattan jail.
All of these people, from Rawls to the Manhattan money man, ended up in jail as a result of their failure to comply with a judge’s order.
Civil contempt charges, on the other hand, are meant to be coercive, issued to force behavior such as making a witness testify, compelling a journalist to reveal sources or strong-arming a parent into paying child support. Because civil “contemnors” hold the key to their own freedom — after all, complying will spring them — they aren’t given the same due-process rights as criminal defendants.
If someone held for civil contempt can’t meet the judge’s order, theoretically, the confinement should end. And while long-term civil confinements are unusual, problems arise when a court doesn’t believe the person. With the party and judge at loggerheads over, say, the availability of funds, it is often the contemnor who loses, forced to remain behind bars at the mercy of a skeptical judge.
The mercy of a skeptical judge. Funny, they only seem skeptical when it’s a defendant taking the opposite position of the government. It would be nice to see that same skepticism when a police officer smells marijuana from a moving car with the windows rolled up and then never finds it.
These cases turn the 5th Amendment on its head. The right to be free from self-incrimination naturally stems from the counter meaning of the phrase. The government has to incriminate you. Except when they can’t. And the judge doesn’t believe you. Then you can get out of jail as soon as you incriminate yourself. But the jail cell doesn’t count as compulsion. Huh?
Maybe you don’t care. Because, according to President Obama, this is the natural destination of a journey on which the citizens of this country blindly started in the ever-important battle to defeat the terrorists and save the children. The usual suspects are to blame (American citizens).
But the president warned that America had already accepted that law enforcement can “rifle through your underwear” in searches for those suspected of preying on children, and he said there was no reason that a person’s digital information should be treated differently.
“If, technologically, it is possible to make an impenetrable device or system, where the encryption is so strong that there is no key, there is no door at all, then how do we apprehend the child pornographer?” Mr. Obama said. “How do we disrupt a terrorist plot?”
I don’t know which of you Americans think it’s cool to let the government rummage through your underwear, but there have to be a few good citizens who don’t like that idea too much. So maybe you should sit in jail until you understand the Constitution. For a long time. Not because you are being forced to understand it. It’s just because, you know, there is skepticism about your ability to understand it.
Just think about the children while you are in there. And freedom. Hopefully the irony sets in eventually.