Former Philadelphia police officer Francis Rawls, who has been in jail for 17 months, has refused to obey a court order to unlock the devices

A former Philadelphia police officer who has spent 17 months in jail will remain there indefinitely unless he agrees to unlock two encrypted hard drives. The suspect, Francis Rawls, has so far refused to comply with the court order, citing the fifth amendment, which protects him from self-incrimination.

The case has become a battleground for civil liberties campaigners, who believe that citizens should have the right to protect their critical information and to be protected from self-incrimination. However, the suspected nature of the encrypted content makes for a challenging ethical quandary: those hard drives are believed to contain images depicting child sexual abuse. In order to stand up for the rights of citizens across the US, organizations such as the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU) must defend a suspected pedophile.

Facebook and Instagram ban developers from using data for surveillance Read more

According to court documents obtained by Ars Technica, the case started in 2015, when the Delaware County criminal investigations unit got a warrant to search Rawls’ home after investigating his online activity. Officers seized two iPhones, an Apple Mac Pro and two external hard drives and got a warrant to examine their contents. Rawls refused to give up the passwords required to decrypt the hard drives, which were encrypted with Apple’s FileVault software.

That didn’t stop digital forensics experts from finding incriminating content, including an image of a pubescent girl in a sexually provocative position and logs showing the device had been used to visit sites with titles commonly used in child exploitation. The forensic investigation also revealed that Rawls had downloaded thousands of files known by their “hash” values to be child abuse images, although the files themselves couldn’t be accessed. The suspect’s sister also told police that she had seen hundreds of images of child sexual abuse on the hard drives.

In August 2015, a court issued a decryption order, compelling the suspect to unlock the encrypted devices. He unlocked one of the iPhones, but said he could not remember the passwords to the encrypted hard drives – an assertion the court rejected based on testimony from his sister, who said she had seen him enter his passwords from memory. In September, a district court held the suspect in contempt of court for refusing to comply with the decryption order. On Monday, the third US circuit court of appeals upheld the decision.

Rawls remains imprisoned without charges (for much of the time in solitary confinement) in Philadelphia’s federal detention center until he complies with the court order.

“Theoretically, he could be held in jail for contempt forever ... until he’s dead,” said Dan Terzian, a lawyer from Duane Morris.

“Given the powerful evidence here that the defendant knows the passwords, he holds the key to his own cell. It is his own refusal to provide the evidence covered by the search warrant that is keeping him there,” added Adam Klein, a senior fellow at the Center for a New American Security.

In ruling against Rawls, the court of appeals has decided that his constitutional rights against being forced to self-incriminate are not being breached. This is because of an exception to the fifth amendment known as a “foregone conclusion”, which is when authorities already know something exists – in this case, police say they know there are child abuse images on the hard drives because they have a witness who saw the files (Rawls’ sister). The EFF and ACLU argued in an amicus brief that they did not believe the government could demonstrate with “reasonable particularity” that it knew the documents existed.

Why don’t they go to trial without the files allegedly stored on the encrypted devices? It comes down to reasonable doubt.

“The government wants every piece of evidence they can get to show the jurors what a disgusting person the defendant is,” said Terzian, who has previously attended a trial where no actual images were presented as evidence in a case addressing child abuse images.

“Witnesses said he was searching for it, but he was found not guilty because the defence convincingly argued that if there was child porn, the government would have shown it,” he said.

There is also the issue of identifying child victims of sexual abuse and their attackers.

In her essay on the topic, published in January, the Brookings Institution fellow Susan Hennessy explained the “immediate and real” problem:

Whereas with respect to terrorism cases we often end up hypothesizing how law enforcement and policy makers will respond to “the next big attack”, in the child exploitation context the next attack is happening literally every day.

Children as young as infants and toddlers are raped or otherwise abused on camera; those images are routinely shared among a community of offenders; and those offenders deploy technologies that make it difficult or impossible to discover the perpetrators, prosecute their crimes, or identify and rescue victims.

Hennessy proposes that instead of forcing technology companies to create backdoors for law enforcement, “lawful hacking” – in which the government exploits vulnerabilities in encrypted systems – and regulation should be more broadly applied.

The suspect’s attorney, Keith Donoghue, a public defender, said he was “disappointed in the ruling” and was studying the decision to determine the next course of action.

“The fact remains that the government has not brought charges. Our client has now been in custody for 18 months based on his assertion of his fifth amendment rights against self-incrimination,” he said.