A Philadelphia man has been freed after a federal appeals court ruled that his continued detention was violating federal law. Francis Rawls, a former police officer, had been in jail since 2015, when a federal judge held him in contempt for failing to decrypt two hard drives taken from his home. The government believes they contain child pornography.

In 2015, law enforcement raided Rawls' home and seized two smartphones, a Mac laptop, and two hard drives. Prosecutors were able to gain access to the laptop, and police say forensic analysis showed Rawls downloading child pornography and saving it to the external hard drives. But the drives themselves were encrypted, preventing the police from accessing the downloaded files.

A judge ordered Rawls to decrypt the hard drives. In its recent ruling, the 3rd Circuit Court of Appeals described what happened next. Rawls "stated that he could not remember the passwords necessary to decrypt the hard drives and entered several incorrect passwords during the forensic examination."

The judge held Rawls in contempt and ordered him imprisoned. Rawls challenged his imprisonment, arguing that it violated his Fifth Amendment right against self-incrimination. But in 2017, the 3rd Circuit rejected his argument.

The Fifth Amendment gives witnesses a right not to testify against themselves. Rawls argued that producing a password for the hard drives would amount to an admission that he owned the hard drives. But the 3rd Circuit rejected that argument. It held that the government already had ample evidence that Rawls owned the hard drives and knew the passwords required to decrypt them. So ordering Rawls to decrypt the drives wouldn't give the government any information it didn't already have. Of course, the contents of the hard drive might incriminate Rawls, but the contents of the hard drive are not considered testimony for Fifth Amendment purposes.

An 18-month limit?

After losing that appeal, Rawls raised another challenge: the federal statute that allows judges to hold witnesses in contempt for refusing to testify, passed in 1970, states that "in no event shall such confinement exceed eighteen months."

The government argued that this provision didn't apply to Rawls because he was a suspect, not a witness. Also, the rule applies to a "proceeding before or ancillary to any court or grand jury." But because the government hadn't formally charged Rawls with a crime, the government argued, there was no court proceeding under way.

Last week, a three-judge panel of the 3rd Circuit rejected this argument in a 2-1 vote. The court's two-judge majority held that Congress had intended for the 18-month limitation to apply broadly to any legal proceeding, not just a formal trial. And while Rawls was a suspect in the case, he was also a witness.

The practical result is that, at least in federal court, someone can only be imprisoned for 18 months for refusing to open an encrypted device. That's probably a harsh-enough penalty to induce most people to comply with decryption orders. But suspects in child-pornography cases might be tempted to "forget" the passwords on their encrypted device if doing so could save them from a conviction and a much longer prison term.

The ruling might not help Rawls very much, however. The government says it has piles of other evidence suggesting that Rawls possessed child pornography. For example, last week's ruling notes that Rawls' own sister testified that "Rawls had shown her hundreds of images of child pornography on the encrypted external hard drives, which included videos of children who were nude and engaged in sex acts with other children." Rawls' smartphone also contained "approximately twenty photographs focusing on the genitals of Rawls' six-year-old niece."

So prosecutors may be able to piece together enough evidence to convict him, even without access to his encrypted hard drives. One of the two judges who formed the 3rd Circuit's majority urged the trial court judge to consider the four years of imprisonment Rawls has already served if he eventually has to sentence Rawls after a child pornography conviction.

Dissent

One judge, Jane Richards Roth, dissented from last week's appeals-court ruling. Roth argued that Rawls wasn't being asked to testify at all—and hence that the 18-month limit didn't apply. She argued that Rawls was merely being asked to comply with a search warrant.

The government's ability to execute search warrants—and a judge's ability to hold people in contempt for ignoring them—can be traced back to a 1789 law called the All Writs Act. Roth argued that this law, not the 1970 law about compelled testimony, should govern the Rawls case. And that act doesn't impose a time limit on persons being held for contempt.

"It is not clear that Congress intended the provisions of that statute to limit the power of courts to hold individuals such as Rawls, the recipient of a valid search warrant, in civil contempt," Roth wrote. "Rawls is not a 'witness,' as his contempt relates only to the decryption order replying that he comply with the government's search warrant by producing his devices in a fully unencrypted state."