CO125 Wen Fa on Litigating Liberty

Wen Fa is an attorney with the Pacific Legal Foundation, a national, nonprofit legal organization that represents clients free of charge.

We talked about his work on cases including Rentberry v. City of Seattle about rent-bidding laws, and another tenant/landlord case, Pakdel v. City and County of San Francisco, and various cases about Vaping.


Francis Rawls is in jail. And that’s where he’s staying. He lost his case at the 3rd US Circuit Court of Appeals in Philadelphia. So what has he been convicted of? Nothing.

Rawls, a former Philadelphia police officer has been in jail 17 months because he invoked the Fifth Amendment, he said he wouldn’t give self-incriminating information to police investigating him. But the Fifth Amendment is, you know, the Fifth Amendment. It guarantees the right not to incriminate yourself.

The exact text is no person “shall be compelled in any criminal case to be a witness against himself”. So how come the court denied his appeal, with three judges voting unanimously against him? It’s partly because the information that the police and the courts want him to hand over, and that he is refusing, are the passwords to encrypted external hard drives that were connected to his computer. The police seized them, along with his computer because they believe they contain child porn, and they do have good reason to believe that, and they convinced a judge to give them a warrant to seize and search his computer.

The appeals court ruled that forensic examination showed that Rawls had downloaded thousands of files, the hash values of which indicated they were child pornography.  That’s a bit of geek-speak but it means they were monitoring his online activity, they didn’t get the actual files, but they recognized that they were extremely likely to be identical to files of known child porn images.

There was other evidence – one image depicting a pubescent girl in a sexually suggestive position was found on his computer, Rawls’ sister had said her brother showed her hundreds of pictures and videos of child porn, and that logs on his computer that suggested the user had visited groups with titles common in child exploitation.

There are some problems with that evidence, logs of a computer visiting pages with titles common in child exploitation doesn’t mean that the computer downloaded child porn, and they don’t prove who generated those logs; but that said, you can be damn sure I wouldn’t be leaving  Francis Rawls alone with any child of mine.

But Rawls hasn’t been convicted of anything, he hasn’t even been charged with anything, but the court ruled that the Fifth Amendment doesn’t apply; the lower court, the appeals court and the police, all agreed that the presence of child porn on his drives was a “foregone conclusion.” That’s where my real problem was. If it is a foregone conclusion, why not just use the evidence that shows it is a foregone conclusion to charge and convict Rawls?

We’ve had a speaker from the Electronic Frontier Foundation on the podcast before and one of their attorneys said about this case “compelled decryption is inherently testimonial because it compels a suspect to use the contents of their mind to translate unintelligible evidence into a form that can be used against them. The Fifth Amendment provides an absolute privilege against such self-incriminating compelled decryption.”

But the court disagreed, and Rawls stays in prison until he hands over the passwords, even though he has already been inside for longer than he might expect to be if he was sentenced for possessing child porn.

It’s hard to have sympathy with someone who’s probably a pedophile, but that’s the whole point. If our rights can be cancelled by just being accused of being a criminal, then none of those rights will last long. There’s no point in saying that everyone is entitled to a fair trial, as long as they are not suspected of being a criminal.

And this is not a rarified situation. Many countries have a variation of this, but New Zealand has gone a step further and made it a crime for anyone travelling in or out of that country not to unlock their phone or other devices for border officials to snoop through and copy as they see fit. No reason, no warrant required, and anyone who doesn’t comply will have their devices confiscated, along with a $5,000 fine.

So if anyone you’ve ever been sexting with decides to take a trip to New Zealand, you can expect your private photos to be shared around the break room of the border guards, and then be sent on to all their friends, and their friends’ friends, and so on.

It’s long been established that countries are entitled to check the goods coming across their borders to make sure they are legitimate, the right taxes are paid and so on. When the electronic age came in, that seems to have been quietly extended to examining the data stored on laptops, phones and so on.

I just don’t buy the line that this is to protect us from terrorists or organized crime. Anyone who is wise to these laws will be smart enough to make sure they only travel with clean devices. If they want to store or transport incriminating data, they can just encrypt it, email it to themselves, and pick it up once they have crossed the border.

Sure, these laws might pick up the odd dumb criminal, but that leaves the question – are you willing to sacrifice all of your privacy, hand over all your data to the border agents of any country you, or anyone you’ve been in contact with travels to for them to make use of on their next bathroom break or to pass on to their secret police, just to pick up the odd dumb criminal?