On Monday, March 20th, the United States Third Circuit Court of Appeals unanimously denied an appeal, by a vote of 3-0, in a case where a former Philadelphia police officer was jailed for invoking his 5th amendment right to remain silent and not incriminate himself by revealing the password of two hard drives that were encrypted with Apple’s FileVault. The Supreme Court had not ruled on the constitutionality of courts ordering defendants to decrypt encrypted files. In 2012, another United States Federal Court, the 10th Circuit Court of Appeals, ordered a defendant to hand over encryption keys, but that order was never enforced.
The man was charged with contempt of court under the authority given to the courts under the All Writs Act of 1789, the same law that federal prosecutors tried to use against Apple last year to force Apple to help decrypt a dead terrorist’s iPhone. The former police officer was in jail for nearly 18 months. He will not be released until the judge lifts the order, or until the order is overturned on an appeal, or if he decides to hand over the decryption keys. The Electronic Frontier Foundation (EFF) has filed an amicus brief