A man suspected of possessing child pornography has spent the last seven months in jail after refusing to decrypt hard drives key to the case.
The former sergeant of the Philadelphia Police Department has been accused of possessing child abuse images, but no formal charges have been brought. Law enforcement needs the suspect to decrypt two hard drives, but he has so far refused -- and a judge has ruled that the suspect will stay in jail until he complies.
The judge in charge of the case has ordered that the former police officer be indefinitely held behind bars (.PDF) until he complies, saying that he "[carries] the keys to his prison in his own pocket."
However, as noted by Naked Security, the suspect's lawyer argues that producing the passcode which will allow law enforcement to decrypt the drives would violate his Constitutional rights.
The lawyer argues (.PDF):
"The order transgresses the Fifth Amendment guarantee that no person shall be compelled to be a witness against himself. [...] Continued incarceration serves neither the prosecutorial interest in this case nor the public interest."
The defense has urged the court to release the suspect immediately from his long incarceration, pending the outcome of an appeal. In addition, the team has cited the overuse of the All Writs Act to try and compel the suspect to decrypt the drive.
The All Writs Act gives US courts the power to issue orders "necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."
This is the same act that US law enforcement attempted to use to compel Apple to unlock an iPhone in the San Bernardino shooting case, and ironically, it is hard drives encrypted with Apple's FileVault software which is at the heart of this matter.
The case comes at an interesting time in the encryption debate. While prosectors often argue "nothing to fear, nothing to hide" in these cases, the issue goes further than the refusal to comply -- the heart of the problem is that law enforcement is being trumped by encryption technologies.
Encryption is the backbone of security and is needed more than ever in today's cybersecurity landscape, but attempting to balance security and the powers of law enforcement is likely to remain a struggle in upcoming criminal cases.
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