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

[Peter Fairbrother]

On 28/04/16 20:25, grarpamp wrote:
> https://yro.slashdot.org/story/16/04/27/2357253/child-porn-suspect-jailed-indefinitely-for-refusing-to-decrypt-hard-drives
> http://thehackernews.com/2016/04/decrypt-hard-drive.html
> https://www.scribd.com/doc/310741233/Francis-Rawls-Case
> http://arstechnica.com/tech-policy/2016/04/child-porn-suspect-jailed-for-7-months-for-refusing-to-decrypt-hard-drives/
>
> Amici Curiae by EFF and ACLU
>
> 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 in Philadelphia's Federal Detention Center for refusing to
> unlock two drives encrypted with Apple's FileVault software in a case that
> once again highlights the extent to which the authorities are going to
> crack encrypted devices. The man is to remain jailed "until such time that
> he fully complies" with the decryption order. The government successfully
> cited a 1789 law known as the All Writs Act to compel (PDF) the suspect
> to decrypt two hard drives it believes contain child pornography. The All
> Writs Act was the same law the Justice Department asserted in its legal
> battle with Apple.

A quick-as-I-can note on the "All Writs Act" for non lawyers.

Long long ago the things which a Court could do were by and large 
limited to things which other Courts had done before; so people would 
mostly know what a Court would do if eg they murdered someone.

This is known as Common Law, and the principle behind it is known as 
"stare decisis" - the idea that all Courts will act alike, and that 
therefore justice is the same for all, and that people can know what the 
Courts will say people can and cannot do.

However if a Court came across a new situation then if it needed to it 
could do something new to ensure justice was done. There was no 
fundamental limitation on what Courts could do, only that they had a 
vague but general duty to follow previous precedents if they reasonably 
could.


 From time to time since then people have tried to put what a Court 
could do into writing; these are the laws passed by Governments, which 
are known as Statute Law, as opposed to the previous Common Law.

However, and thankfully, the transition to Statute-only Law has never 
been completed, and in general Common Law is still in effect except in 
particular areas where Statute law has said it isn't.


The All Writs Act was simply an early attempt to put the previous Common 
Law idea that a Court could do whatever was necessary to ensure justice 
in a new situation (within some limitations) into Statute Law.

It says that a Court can issue any writs it needs to in a new situation 
(a "matter of first impression") - but this has always been the case, 
for over a thousand years.


If you repealed the All Writs Act the Courts would have slightly more 
power to issue writs, as the limitations in the Act would be gone.

-- Peter Fairbrother.