A former police sergeant in the Philadelphia Police Department has been held in jail for seven months with no sign of release, despite not being charged with a crime. He is suspected of being in possession of child pornography, and refuses to decrypt the hard drives that could convict him. The court has ruled he’ll stay in jail until he does.
This case comes at an interesting time given the ongoing public debate over encryption. The argument “nothing to hide, nothing to fear” is often offered by encryption opponents, while encryption proponents suggest personal privacy is a right and shouldn’t be infringed upon without due process.
The real-world effect of these two conflicting arguments is no more apparent than in the case of this particular police officer. The evidence against him is thin, with previous device searches finding no child pornography. The only relevant evidence involves circumstantial statements from his sister and an expert who offered a “best guess” that underage pornography was on his encrypted drives.
But even if there is illegal material on those drives, the Fifth Amendment right against self-incrimination could protect the officer from having to do so, since opening them up could lead to his conviction (thanks Ars).
This is the argument the defense is putting forward on the officer’s behalf. His attorneys are also highlighting the overuse of the 1789 All Writs Act, which the court is using to try and force the defendant to comply.
Because of his non-compliance, the officer is being held in contempt of court, and the judge for his case has ruled he will not be allowed to leave jail until he does comply.
As highly charged as the potential charges of child pornography are, the defense argues that this sets a dangerous precedent, permitting someone who has not been charged with a crime, and against whom only minimal evidence has been presented, to be held indefinitely in jail.
Weighing in on the situation is the pro-privacy Electronic Frontier Foundation, which also highlighted how forcing decryption on an alleged criminal could violate their Fifth Amendment rights.
“The Fifth Amendment provides an absolute privilege against such self-incriminating compelled decryption,” the Foundation asserted in a related statement.