[Cryptography] US Case: Infinite Jail Contempt for Disk Crypto, 5th Amndmnt, All Writs, FileVault, Freenet CHKs

[Jerry Leichter]

> A Philadelphia man suspected of possessing child pornography has been in
> jail for seven months and counting after being found in contempt of a court
> order demanding that he decrypt two password-protected hard drives. The
> suspect, a former Philadelphia Police Department sergeant, has not been
> charged with any child porn crimes. Instead, he remains indefinitely
> imprisoned....
The reality is likely to be a bit different.  After some amount of time - a year, two years - he can go before the court and argue that he no longer remembers the password.  He should have no problem finding expert witnesses to testify that this claim is believable - it's one thing to remember a good password (and if it weren't a good password it would have been broken by a brute force attack by now) you use every day; quite another thing to remember one you've had no opportunity to use in years.

Once the court is convinced that compliance is impossible, the basis for the contempt citation vanishes.  Jail for contempt in a situation like this exists to compel an action; it's not a punishment.

So the net effect of using the compulsion of jail for contempt is to place a ceiling on the kinds of crimes for which you effectively can compel unlocking.  If the guy knows there's child porn on those drives, he knows he faces much more than a year or two in jail if convicted.

Granted, criminals do all kinds of dumb things.  Some will be ordered to decrypt and will go ahead and do so, imagining that somehow they'll dodge the bullet in the subsequent trial.  But the really bad criminals, accused of the worst crimes, who are shielding the most damning evidence behind a password only they know ... they'll keep their mouths shut and accept the relatively low penalty of a contempt jailing.

                                                        -- Jerry