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UPDATE: Federal Court Releases Man Jailed for 4 Years for Refusing to Decrypt Computer Hard Drives in Child Pornography Case

In 2017, we blogged about a former Philadelphia police officer who has been sitting in jail since Sept. 30, 2015, for refusing to comply with a court order to divulge passwords for two encrypted computer hard drives seized from his home under a search warrant.

The hard drives are believed to contain child pornography. The former police officer, who is under prosecution for possession of child pornography, was held in contempt of court for refusing to give investigators his password.

On Feb. 6, the U.S. Court of Appeals for the Third Circuit held that the maximum penalty for civil contempt is 18 months and ordered that the computer owner be released.

The Events

As a brief recap, the saga began when law enforcement seized multiple electronic devices as part of an investigation into the computer owner’s possible downloading of child pornography over the internet. Investigators decrypted some of the devices and discovered he had accessed more than 20,000 files with child-porn-related names and stored them on the two external hard drives, which were connected to his computer when they were seized. During the investigation, the computer owner’s sister told investigators he had shown her hundreds of images of child pornography contained on the hard drives.

Unable to decrypt the hard drives themselves, investigators obtained a court order compelling the computer owner to unlock the devices. He claimed he could not remember the passwords and entered several incorrect passwords during a forensic examination. At that time, he decrypted other devices investigators had seized, which contained adult pornography, a video of his 4-year-old niece in her underwear, and 20 photographs focusing on the genitals of his 6-year-old niece.

A district court judge didn’t believe the computer owner couldn’t remember the passwords for the hard drives and ordered that he be held in contempt of court and taken into custody until he divulged them. The Third Circuit affirmed that order.

Four Years Later

But now more than four years have passed. With the passage of time came a new legal issue of whether the computer owner is considered a “witness” under a federal statute which states:

A witness in any proceeding before or ancillary to any court or grand jury of the United States refuses without just cause shown to comply with an order of the court to testify or provide other information, including any book, paper, document, record, recording or other material, the court, upon such refusal, or when such refusal is duly brought to its attention, may summarily order his confinement at a suitable place until such time as the witness is willing to give such testimony or provide such information … but in no event shall such confinement exceed 18 months.

We supplied the emphasis to the final line because if the computer owner was a “witness,” there was a set limit on how long the government could hold him in jail.

Third Circuit Ruling

In finding that the computer owner qualified as a witness and must be released from jail, the court wrote:

If the Government seeks to impose any additional deprivation of liberty for [the computer owner’s] status as a suspect in the alleged child pornography offenses the Government must charge [the computer owner] with those offenses, provide [the computer owner] with a trial by a jury of his peers, prove those charges beyond a reasonable doubt, and sentence [the computer owner] in accordance with due process. To hold that [the federal statute] applies only to witnesses who are not also suspected of crimes would do an end run around these fundamental rights and relieve the Government of its burden to prove a defendant guilty before imposing punishment.

Conclusion

When we first blogged about this case, we described the computer owner’s predicament as a Hobson’s choice: sit in jail for refusing to provide his passwords, or provide the passwords and, most likely, sit in jail for child pornography.

The Third Circuit’s decision clearly indicates that there was a third alternative: wait out the statutory time limit on the government’s ability to incarcerate him for not divulging his passwords.