US man loses appeal in child porn encrypted device legal case

The John Doe has been held in custody for 18 months after refusing to decrypt his hard drives.

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A US man has lost an appeal over his refusal to decrypt hard drives in a case law enforcement says involves child pornography.

The unnamed man has been held by US police for over 18 months without criminal charges.

The suspect's lawyer has argued that he should not have to hand over his passwords due to the Fifth Amendment, which protects US citizens from incriminating themselves.

However, a US judge disagrees.

According to court documents released this week (.PDF) by the US Third Circuit Court of Appeals, during an investigation relating to child pornography on the Internet, a raid in 2015 on the man's home resulted in the seizure of an Apple iPhone 5S and an Apple Mac Pro together with two attached Western Digital external hard drives.

All of the devices were protected with encryption software, of which law enforcement was originally unable to break.

While the suspect gave police a password for the iPhone, he refused to decrypt the Mac Pro and the hard drives.

Forensic investigators were able to discover the password for the Mac which contained images of a "pubescent girl in a sexually provocative position," -- including sexual content relating to Doe's four and six-year-old nieces.

According to prosecutors, browser logs that revealed John Doe had visited websites related to child pornography were also found.

The forensic team was also able to learn that the man had downloaded thousands of files believed to be child porn. Although the team says these files have been downloaded due to their hash values, the files themselves were not stored on the MacBook Pro -- but rather, the inaccessible hard drives.

The suspect's sister also gave testimony to police, alleging that Doe had shown her "hundreds" of child pornographic images from the hard drives, alongside "videos of children who were nude and engaged in sex acts with other children."

However, law enforcement failed to access the external hard drives. Doe refused to hand over the passwords required to decrypt the drives -- at one point claiming to have forgotten them -- and so the court found him in contempt in 2015 for refusing to comply and "produce several seized devices in a fully unencrypted state."

The man has remained behind bars ever since, which currently stands at over 18 months.

Doe originally filed with the US Magistrate Judge to quash the order, arguing that decrypting the devices would violate his Fifth Amendment rights against self-incrimination. This motion was denied, leading to the fresh appeal.

"The Magistrate Judge acknowledged Doe's Fifth Amendment objection but held that, because the Government possessed Doe's devices and knew that their contents included child pornography, the act of decrypting the devices would not be testimonial for purposes of the Fifth Amendment privilege against self-incrimination," the court documents read.

Doe now argues that he should not be held in contempt as the District Court also lacks the jurisdiction to issue the order to decrypt his devices.

Speaking to the BBC, Keith Donoghue, a federal defender representing John Doe said the rejected appeal is "disappointing."

"[We are] studying the decision to determine what further review it may be appropriate to seek," Donoghue said. "The fact remains that the government has not brought charges and our client has now been in custody for nearly 18 months based on his assertion of his constitutional right against self-incrimination."

The Electronic Frontier Foundation (EFF) has filed an amicus brief in this case, arguing against compelling someone to reveal their passwords. In an interview, EFF senior staff attorney Mark Rumold told The Register that "any time suspects are forced to disclose the contents of their mind, that's enough to trigger the Fifth Amendment, end of story."

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