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Sarah Christensen Attorney At Law, P.C. - Attorney Colorado Springs

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"Justitia Omnibus"

(Justice For All)

"There is one way in this country in which all men are created equal -- there is one human institution that makes a pauper the equal of a Rockefeller, the stupid man the equal of an Einstein, and the ignorant man the equal of any college president. That institution, gentlemen, is a court." - Atticus Finch, To Kill A Mockingbird

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By sarahchrist77708548, May 24 2016 08:20PM

It's become too clear to ignore: In many American cities, homicide is on the rise. The 56 largest cities saw 17 percent more homicides in 2015 than in 2014 — and in 10 of those cities, homicides were up by more than 60 percent.

For people who've been following the debate around police-community relations in America, though, this isn't a surprise. For the past year, defenders of police have been raising the specter of the "Ferguson effect": the theory that protests against police shootings and brutality have made police afraid of doing what they need to do to keep communities safe, which has led to a rise in violent crime.

The biggest proponents of the Ferguson effect are conservatives like Heather Mac Donald (whose new book on the subject is literally called The War on Cops). But even FBI Director James Comey has put forward a version of the theory (to the administration's chagrin). And while criminologists were originally skeptical, some of them — including one who's doing an analysis for the Department of Justice — are beginning to believe there's more to the theory than originally thought.

The problem is that calling it the Ferguson effect strongly implies that if crime goes up because police are retreating, that's the fault of the public for making police scared. That polarizes the conversation before it's begun. The fact of the matter is that in many cities, crime is going up and police are retreating — and in some of those cities there's a connection between the two. But police are the only ones who can fix it.

A police officer, glimpsed through the window of his cruiser, at a Chicago crime scene in 2016.

Joshua Lott/Getty

A police officer, glimpsed through the window of his cruiser, at a Chicago crime scene in 2016.

Talk of the Ferguson effect started before there was much evidence of a change in crime rates

The phrase "Ferguson effect" lumps together three different questions: what is happening to crime in US cities; why it's happening; and whose fault it is.

The confusion between the three isn't a coincidence. People started talking about a crime wave last year, when there was barely any evidence to bear out the theory, as a way of accusing Black Lives Matter and other protesters of eroding public safety.

In May 2015 — about a month after the killing of Freddie Gray in Baltimore caused several days of protest and unrest — researcher Heather Mac Donald of the Manhattan Institute published a Wall Street Journal commentary called "The New Nationwide Crime Wave."

Mac Donald used homicide and shooting data from some cities (including Baltimore) to argue that after 25 years of falling crime rates in the US, violent crime was on the rise again. The reason for this, she wrote, was that police were afraid to do what they needed to do to keep communities safe — because they were worried about what Mac Donald called "intense agitation against American police departments":

A handful of highly publicized deaths of unarmed black men, often following a resisted arrest—including Eric Garner in Staten Island, N.Y., in July 2014, Michael Brown in Ferguson, Mo., in August 2014 and Freddie Gray in Baltimore last month—have led to riots, violent protests and attacks on the police. [...]

“Any cop who uses his gun now has to worry about being indicted and losing his job and family,” a New York City officer tells me. “Everything has the potential to be recorded. A lot of cops feel that the climate for the next couple of years is going to be nonstop protests.”

To describe this phenomenon, Mac Donald used a term coined by St. Louis Police Chief Sam Dotson back in November 2014: the "Ferguson effect." In Dotson's original formulation, the Ferguson effect referred to both the strain on police officers who'd had to put in time policing protests in the area and the idea that "the criminal element is feeling empowered" thanks to officer fatigue.

This was both specific to St. Louis and mostly bogus — subsequent analyses showed that crime was up in the St. Louis area in early 2014, before Michael Brown was shot. In Mac Donald's hands, though, it became something more universal and more credible: the idea that the fear of something like the Brown shooting happening in their areas was making officers unwilling to take necessary actions to keep their communities safe, and criminals were flourishing in the vacuum.

That's also the way FBI Director James Comey has put it on more than one occasion (while Comey resists the term "Ferguson effect" itself). He describes it as a "chill wind blowing through American law enforcement": a change in police officer behavior, driven by fear of being caught on video doing something controversial.

Homicides really are on the rise in many US cities

Mac Donald's article was readily embraced by pro–law enforcement conservatives. But it wasn't given much credence by criminologists, who accused MacDonald of cherry-picking her data and of being way too quick to identify a few data points as a trend. On the whole, they argued, crime was still down, so looking at a few specific cities to prove a hypothesis was essentially singling out statistical noise.

The foremost proponents of this idea have been the Brennan Center for Justice, which has released multiple reports over the last year challenging the idea that there's any significant rise in crime.

But over the past year, evidence has begun to mount that there really is something going on.

Preliminary FBI estimates indicate that violent crime was up 1.7 percent nationwide from the first six months of 2014 to the same period in 2015. That's not unprecedented during the current era of falling crime rates — something similar happened three years earlier — but it's moderately worrisome.

A report by the Major Cities Chiefs Association, meanwhile, collected data from 63 agencies and found that homicides were up 9 percent from the first quarter of 2015 to the first quarter of 2016 — with non-fatal shootings up 21 percent during the same period.

All of this could still turn out to be statistical noise. (It's not a coincidence that the conversation around whether a Ferguson effect–style crime wave is real is happening at the same time as a conversation about just how bad crime data is at the national level.) Where there really does seem to be something going on that's too significant and too sudden to be mere coincidence, though, is when looking at certain individual cities.

An officer at the crime scene of Baltimore's 300th homicide of 2015, which happened in mid-November. (The city ended the year with 344 homicides.)

Karl Merton Ferron/Baltimore Sun via Getty

An officer at the crime scene of Baltimore's 300th homicide of 2015, which happened in mid-November. (The city ended the year with 344 homicides.)

Richard Rosenfeld of the University of Missouri St. Louis — a respected criminologist who was an early critic of Mac Donald and Comey's versions of the Ferguson effect theory — has conducted an analysis of his own for the Department of Justice. As Lois Beckett writes in the Guardian, he's been surprised by what he's found.

In the 56 biggest cities in America, homicides went up 17 percent in 2016. Furthermore, most of that rise was due to about 10 cities. Some of those cities had had high-profile police shootings and protests (Baltimore, Chicago, St. Louis); some had not. But all of them had much larger black populations than other cities. The 10 cities most responsible for the homicide jump had a population that was on average 41 percent black; the other 46 cities were, on average, less than 20 percent black.

The reasons for rising violence vary city by city — but in some cities, they're definitely tied to changes in policing

On the first question, at least — the question of what is happening — the Ferguson effect theory is narrowly correct, at least in some cities. That brings up the second question: why it's happening.

To Mac Donald — and to Comey, even though he's disavowed the term "Ferguson effect" itself — the answer is simple. Homicides are going up because police are less willing to do their jobs effectively.

Rosenfeld puts it more specifically: Police officers are less likely to engage in what's called "proactive" policing. They're less willing to spend any more time in communities than is absolutely necessary to address crimes that have already happened.

Just like there's been a certain reluctance to admit homicide is rising at all among people who don't want to blame Black Lives Matter protesters for it, there's been reluctance to attribute any rise in homicides to changes in policing. The Brennan Center, for one, argues that the cities where homicides have gone up are simply more economically depressed (something Rosenfeld points out didn't start last year, and therefore can't explain a single-year jump).

It's tempting to believe that police have no effect on crime. That's what led some liberals, for example, to celebrate the NYPD "slowdown" of January 2015, in which police officers refused to make arrests for minor crimes, respond to police calls alone, or spend any more time than usual out of their cars.

But the reality is that changes in policing do affect crime rates. Indeed, "proactive" policing — in forms that have officers walking around neighborhoods and building relationships with their residents — is one of the most effective things a city can do to prevent crime. You just have to look at the correct scale: Police departments are local institutions, and they affect things on a local scale.

A police officer in Washington, DC talks to a resident while doing his rounds via Segway.

Linda Davidson/The Washington Post via Getty

It turns out that when police actually talk to people, they can do their jobs better.

"Gun violence is very local," says crime analyst Jeff Asher. "And changes in gun violence patterns probably have local explanations." So he doesn't give much credence to Comey's version of the Ferguson effect theory — that the hypothetical fear of being the subject of a viral video somewhere is changing how cops around the country do their jobs. "There's little evidence in the places we can measure it," he says, "that proactivity in, say, Louisville, went down because of events in St. Louis or Baltimore."

But there is evidence that events in Baltimore — namely, the death of Freddie Gray and ensuing protests — made police in Baltimore less proactive. Asher charted shootings in Baltimore (the red line) against police proactivity, as measured by drug arrests (the blue line):

View image on Twitter

View image on Twitter


Jeff Asher ‎@Crimealytics

It's useful to see what a Ferguson Effect looks like in data. Here's Baltimore: proactivity drops, shootings rise.

6:12 PM - 16 May 2016

14 14 Retweets 15 15 likes

The same is true in Chicago, after video was released of the death of Laquan McDonald. An analysis that Asher did with Rob Arthur for FiveThirtyEight showed two main effects: an increase in homicides and nonfatal shootings, and a decrease in arrests for those same crimes.

Less "proactive" policing is another word for police officers not doing their jobs

The connection between community protests and a less proactive police force is actually better established than the relationship between community protests and higher crime. A 1999 study by criminologist Robert Ankony found that when police feel more alienated from, and negatively toward, members of the community, they're more likely to retreat from "proactive" policing and do only what they need to do to respond to crimes. And in some cities, like Minneapolis, police proactivity dropped in 2015 after a controversial police shooting — it just didn't affect homicide and shooting rates, which were already high.

New York's 2014 "slowdown" illustrated just how this sort of thing can happen: After the murders of officers Wenjian Liu and Rafael Ramos, reports circulated that union officials were telling officers that it wasn't safe out there and they needed to protect themselves first. "These are precautions that were taken during the 1970s when Police Officers were ambushed and executed on a regular basis," one email sent to NYPD officers (attributed to the Patrolmen's Benevolent Union, one of the police unions) read.

This sort of thing appears to confirm a belief common to critics of law enforcement: that police officers put their own safety first and community safety second.

For many officers, it appears to be correct — and it's understandable. As several former law enforcement officers have told me, it's hard to do your job if you don't get home alive at the end of the day.

NYPD officers turn their backs on Mayor Bill de Blasio in protest during the funeral for NYPD officer Wenjian Liu in 2014.

Debbie Egan-Chin/NY Daily News via Getty

NYPD officers turn their backs on Mayor Bill de Blasio in protest during the funeral for NYPD officer Wenjian Liu in 2014.

The problem is that police officers aren't actually the ones in more danger from rising homicide rates. The FBI's preliminary 2015 stats show that 20 percent fewer police officers were killed on duty in the first half of 2015 than in the first half of 2014 (an unusually deadly year for officers), and the second lowest for the first six months of any of the last 12 years.

Instead, just as the blackest, poorest members of the community are the most in danger from overpolicing, they're the ones left vulnerable when law enforcement indulges in underpolicing. This isn't a new phenomenon either — it's been consistent even through the quarter-century-long drop in crime.

Even as police are getting way fewer murder cases to investigate, they're solving the same share of them: 40 percent. And the tendency to only interact with citizens when absolutely necessary, out of alienation and fear, cuts down on the relationships that (as Comey identified) are crucial in helping solve murder cases — while encouraging police to get aggressive when they do make arrests, since they have no way of knowing how dangerous someone really is.

It's revealing that the reason the discussion of rising homicide rates isn't actually centered on the effects on the community (despite some concern trolling from Mac Donald and company), but rather on the effects on police. Indeed, the Major Cities Chiefs Association's report on rising crime rates came right before National Police Week — which focuses on the dangers police face in the line of duty. But when police put their own safety first, something is actually lost.

The implications of the Ferguson effect: Either the public needs to support police officers unconditionally, or police need to find better ways of going about things

This gets at the third question that the Ferguson effect obscures: In the places where police are being less proactive, whose fault is it?

To Heather Mac Donald, the answer is clear: It is incontrovertibly the fault of critics of the police. "Unless the demonization of law enforcement ends," Mac Donald wrote in her Wall Street Journal commentary, "the liberating gains in urban safety over the past 20 years will be lost."

That's because Mac Donald simply treats it as a given that officer morale is important to good policing, and that criticism hurts officer morale. In other words, it's not just true that police officers put their physical safety first — they put their self-esteem first. And that's a good thing.

When you put it that way, it sounds tremendously insulting to cops: They can't do their jobs if they are suffering from hurt fee-fees. Indeed, when FBI Director Comey advanced his "chill wind" theory, the Fraternal Order of Police caught the less-than-flattering implication and voiced their disapproval.

It's also kind of terrifying, in its implication that cops can only keep the peace if citizens don't look too closely at how they do it: a "Rough men stand ready to do violence" ideal of what law enforcement is supposed to be.

You can't force people to support police. And despite the worries that new policies will make it harder for officers to do their jobs without "red tape," the status quo — which is arguably too good at protecting police — seems pretty stable. So in the world we live in now, there's exactly one solution to the fear of proactive policing: Police need to find ways to do their jobs that don't put them at odds with the community.

This is already happening. As Comey told University of Chicago law students in 2015, part of the change in police officers' behavior is "to be welcomed, as we continue to have important discussions about police conduct and deescalation and the use of deadly force."

A young protester outside the trial of William Porter, one of the Baltimore police officers charged in the death of Freddie Gray.

Marvin Joseph/The Washington Post via Getty

Sounds about right, actually!

One of the examples of insidious low morale Mac Donald cited in her Wall Street Journal article came from a former San Francisco deputy chief: “Officers are trying to invent techniques on the spot for taking down resistant suspects that don’t look as bad as the techniques taught in the academy." That doesn't sound like the most effective way to learn deescalation, but it doesn't exactly seem like a bad idea.

Many criminologists accept that one of the most important parts of policing effectiveness is "procedural justice," the ability of community members to see that they're being treated fairly in interactions with police. A community protest after a police shooting is a sign that the community didn't trust the department to begin with — that the procedural justice wasn't there. A retreat from proactive policing in the wake of such an incident is both a sign of the failure of procedural justice and a perpetuation of it.

If you define the Ferguson effect as a rise in homicides tied to a lack of proactive policing, then the Ferguson effect is real — in a handful of cities. If you define it as a retreat from proactive policing due to fear of public consequences, then it's real in a handful of cities and, possibly, in the heads of scattered law enforcement officials around the country.

But something that's lodged itself in the heads of officers isn't going to go away on its own. The one thing the "Ferguson effect" is not is the thing it's most commonly used as: an attempt to blame black protesters for rising homicide rates in black communities.

By sarahchrist77708548, May 24 2016 08:14PM

WARWICK, R.I. — William Delaney, a former Marine, had already served four years of probation for an alcohol-related offense in Florida and was back in court, this time in Rhode Island, for driving under the influence. His newest brush with the law, combined with his alcoholism and depression, he feared, could close the door on the rest of his life.

That was almost two and a half years ago. Delaney now mentors other veterans in that same court, and he's working toward earning his master's degree in social work to continue helping veterans.

The Veterans Treatment Court opened five years ago in Warwick, Rhode Island, as the first specialty court in New England to help veterans avoid jail and turn their lives around. Like Delaney, most of the 220 veterans who have completed the program haven't committed another offense. The rate of recidivism stands at about 6 percent, according to the court.

"We judge ourselves really harshly in addition to how the court judges us because of how far we've fallen," Delaney said. "It's just devastating. Even such a small thing as having a judge smile and say she understands, and having a treatment team that truly cares, it's a spark. It makes you believe you can do it differently this time."

For Delaney, that jurist was Associate Judge Pamela Woodcock Pfeiffer.

"She seemed like she cared. She reminded me of who I could be and who I was. I wasn't the bad guy," he said. "I wasn't the lost, drunk person. I could be something better again. That was the life-changing moment."

Woodcock Pfeiffer also has kind words for the court and for veterans like Delaney.

"I am totally convinced it's working," Woodcock Pfeiffer said. "People are very clear that if it were not for this, then they would have all these problems."

The first veterans treatment court started in 2008 in Buffalo, New York. Similar courts sprang up nationwide as a way to help reform the criminal justice system, lower costs by reducing the prison population and recidivism rates, and connect veterans with treatment programs.

Today, there are more than 250 and hundreds more are planned, according to Justice For Vets, which advocates for the establishment of the courts and provides training for jurisdictions with new courts.

The Rhode Island court has received hundreds of referrals from District Court for misdemeanor cases. Veterans can opt to stay in District Court, where their case would likely be resolved faster.

If they go to the veterans court, they have to follow whatever treatment the court prescribes to address substance abuse, behavioral or other issues and regularly check in with court staff, usually for 10 months to a year. At the end, often their case is dismissed entirely and expunged.

The court currently has about 70 active cases.

Chief District Judge Jeanne E. LaFazia said the veterans court gives people tools to reintegrate into their community. She credits Woodcock Pfeiffer for getting to know the veterans well, which invests them in the process.

"By the time you get someone in here, they are often at rock bottom," LaFazia said. "You're helping them rebuild themselves. It's a remarkable difference."

Both LaFazia and Woodcock Pfeiffer said the state has a duty to help veterans and give them a chance.

The court holds graduation ceremonies for veterans who complete treatment. At a recent ceremony, Woodcock Pfeiffer praised the veterans for their hard work and asked them pointed questions about their future plans to make sure they would not fall back on old patterns.

"I hope we've been able to give you hope, and the ability to control some of the things that sometimes control you," she said.

The veterans were presented with a coin in the style of a military command coin, which is meant to show one's military affiliation and instill pride.

It bears the last six words of the Pledge of Allegiance: With liberty and justice for all.

By sarahchrist77708548, May 18 2016 04:50PM

Glenn Ford served 30 years in Louisiana prisons — nearly all on death row — for a murder he did not commit. He was freed in 2014 but died in 2015 from lung cancer that had gone untreated while he was behind bars.

Louisiana law provides for up to $330,000 in compensation to people who have been wrongfully imprisoned, but state courts have repeatedly denied Mr. Ford, and now his estate, even that inadequate amount. They say he could not prove he was innocent of a robbery that was connected to the murder for which he was wrongfully convicted and sentenced to death, even though he was never charged with that robbery.

A Louisiana lawmaker introduced a bill last month that would make it easier for people in Mr. Ford’s situation to recover money from the state, but it died in a House committee. The state’s recalcitrance in this case is reprehensible. Shortly before Mr. Ford’s death, even the prosecutor who sent Mr. Ford to prison apologized for his mistakes in a letter to the editor of The Shreveport Times.

At least Louisiana has a compensation statute. Twenty states have no such laws, which means people who spent years or decades wrongfully imprisoned have to bring lawsuits if they want the government to pay for the wrong done to them. Very often, those suits fail because they require proof of official misconduct.

But even where compensation laws exist, they can be badly flawed. Most states, like Louisiana, place the burden on people who were wrongly convicted to prove their innocence before any payment is made. Several states offer embarrassingly small payouts, like New Hampshire, which gives a flat sum of $20,000 no matter how long a person spent behind bars. Others have laws riddled with unreasonable restrictions, like in Florida, where compensation is denied to anyone who has ever been convicted of a felony.

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Some refuse to pay anyone who pleaded guilty or who confessed to a crime he or she did not commit, despite evidence that many innocent people do both. Over all, nearly one-third of the 341 defendants around the country who have been exonerated with DNA evidence have received no compensation.

Finally, most compensation statutes fail to provide those coming out of prison with crucial social services like education, health care, job training and housing. As a result, far too many people end up like Glenn Ford, released directly to the streets, with no money and no prospects.


By the low standards of compensation laws, Texas has perhaps the best. It gives exonerees a lump-sum payout of $80,000 for every year spent behind bars, an additional annuity in the same amount, and funds to help people reintegrate into society. While that is more money than other states offer, it’s still a pittance compared with the loss of years or decades of one’s life. And Texas also bars anyone who takes the payment from filing a civil suit later

A better compensation law would allow bigger payments, which might deter prosecutorial misconduct that leads to wrongful convictions, and also permit lawsuits for the immeasurable damage done.

By sarahchrist77708548, May 16 2016 08:25PM

Francis Rawls was once a police sergeant with the Philadelphia Police Department, where he served for 17 years. Now, he spends 22 and a half hours of every day completely alone. If someone visits him, they have to remain behind a barrier. Each month, he’s granted one fifteen minute phone call. Thus far, he’s had the opportunity to chat on the phone for an hour and forty-five minutes, because he’s been in solitary confinement for the past seven months.

The reason? He won’t give away the passwords to his encrypted hard drives, which were seized as part of a child pornography investigation, Gizmodo reported. According to court records, he’s being held in contempt for not complying with a court order, issued on Aug. 27, 2015. An anonymous source told the website Rawls is in solitary due to fears for his safety in the prison’s general population, as he’s a former police officer.

His attorney, federal public defender Keith Donoghue, declined to comment on Rawls’s imprisonment, specifically his solitary confinement.

Early last year Rawls’s home was raided and his Apple Mac Pro, a Mac Mini, an iPhone 5s and two external hard drives were seized. Though it remains unclear if this is connected, the Office of the District Attorney for Delaware County was conducting surveillance of the “Freenet,” which is similar to Tor or the “deep Web.” It’s a place where users can “anonymously share files, browse and publish ‘freesites,'” according to its official Web page. Those websites aren’t accessible by traditional means, and they aren’t indexed by Google, Yahoo! and the like.

The idea is that the communications are encrypted, so it’s nearly impossible to identify who is who online — like a secret code that only certain computers (and people) can understand. It’s often used to trade illegal goods such as firearms, drugs and child pornography, Tech Central reported.

Rawls is suspected of possessing child pornography. But he’s not been charged with any crime.

According to an appeal filed on Tuesday, in which Rawls is referred to as “John Doe,” the case began in Delaware County, Pa., where investigators attempted to force Rawls to give up passwords in order to decrypt the devices and access the contents of the hard drives. Rawls’s sister testified that he had allowed family members to view content on an iPhone 6, which “allegedly focus on the clothed genital area of two nieces, aged four and six,” the appeal states. Officers also seized this phone.

Rawls refused to offer his passwords, invoking his Fifth Amendment privilege against self-incrimination, an argument supported by Judge Chad F. Kennedy of the Court of Common Pleas.

The judge wrote that Rawls “has properly invoked the Fifth Amendment privilege against self–incrimination when indicating that he would neither perform the act of decrypting the electronic devices, seized by the Commonwealth, nor provide the passwords to the Grand Jury for the electronic devices.”

On July 29, 2015, federal investigators obtained a warrant for the computer equipment seized in Philadelphia, the Philadelphia Inquirer reported.

“Investigators turned to federal court, where an Assistant United States Attorney,” citing the All Writs Act, issued an “order commanding Mr. Doe to decrypt and produce the contents of the iPhone seized at the family gathering, the Mac Pro, and the external hard drives,” the appeal states.

For context, the All Writs Act, written in 1789, was used by the Department of Justice in an attempt to force Apple to unlock an iPhone connected with the San Bernardino, Calif., shooting. Some think using this writ to compel testimony is a slippery slope.

“If the writ can compel Apple to write customized software to unlock a phone, where does it end?” Ahmed Ghappour, a professor at the University of California’s Hastings College of the Law told The Post in February. “Can the government use it to compel Facebook to customize an algorithm that predicts crime? It’s not clear where the line will be drawn, if at all.”

Rawls filed an appeal against the writ, but on August 27, 2015, Rawls’s request for reconsideration of the order was denied by U.S. Magistrate Judge Thomas Rueter.

“The courts hold that the act of production of encryption codes is not testimony” under the Fifth Amendment, he stated. “Even if this production conveys a fact regarding the possession or authenticity of the images contained in the electronic devices — if the government can show with ‘reasonable particularity’ that, at the time it sought to compel the assistance of Mr. Rawls, it already knew of the materials, thereby making any testimonial aspect a ‘foregone conclusion.'”

In other words, if the government already knows there’s child pornography on Rawls’s hard drives, then it’s not self-incrimination for Rawls to give his passwords. Think of it like a search warrant: if an officer of the law is granted a search warrant to someone’s house, then that suspected party has no recourse but to allow the officer enter his house. Much like that hypothetical person wouldn’t be able to lock the door, Judge Rueter ruled that Rawls can’t refuse to provide the passwords.

Following this order, Rawls unlocked the iPhone 6 from the family gathering but claimed not to remember his passwords to the other devices.

On Oct. 5, 2015, a judge ordered that Rawls be incarcerated until he provides the passwords. “It has long been recognized that courts possess the inherent authority to hold persons in contempt,” the court wrote.

Rawls was “remanded to the custody of the United States Marshals to be incarcerated until such time that he fully complies with the order to provide his encryption passwords to investigators.”

Donoghue has requested his client be released, writing in a brief outlining his appeal, “Not only is [Rawls] presently being held without charges, but he has never in his life been charged with a crime.”

For now, Rawls sits in solitary confinement as he awaits the results of the appeal filed Tuesday.

“We are hopeful the appeal will result in our client’s prompt release from the confinement that was ordered after he invoked his Fifth Amendment right against self-incrimination,” Donoghue told The Washington Post.

Arguments abound concerning the delicate balance between digital privacy and law enforcement, what counts as testimony versus what is collectible evidence, what digital information is protected and what isn’t.

This isn’t the first time this specific argument has appeared, either. In 2012, after two years of legal battles, a federal judge forced Ramona Fricosu to decrypt her hard drive, even though she also attempted to invoke the Fifth Amendment. She was being prosecuted for mortgage fraud. The ruling by U.S. District Judge Robert Blackburn also cited the All Writs Act.

“I find and conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer,” the ruling states. “It is clear that the All Writs Act enables the court to issue orders to effectuate an existing search warrant.”

Recently, the aforementioned legal battle in which the government attempted to compel Apple to unlock an iPhone of one of the San Bernardino, Calif., shooters brought this type of conversation to the national forefront. And it’s continuing.

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As one example, on Wednesday, the House of Representatives unanimously passed the Email Privacy Act, which “amends the Electronic Communications Privacy Act of 1986 to prohibit a provider of remote computing service or electronic communication service to the public from knowingly divulging to a governmental entity the contents of any communication that is in electronic storage or otherwise maintained by the provider, subject to exceptions.”

In layman’s terms, it would obligate law enforcement to obtain a search warrant to acquire any emails or data stored in the cloud. A loophole created by the Electronic Communications Privacy Act of 1986 allowed law enforcement agencies to obtain these digital materials without a warrant if they were more than 180 days old.

But technology is often moving more quickly than lawmakers, as evidenced by the many rulings in Rawls’s case. Some companies are, as well. Ars Technica reports of the Email Privacy Act: “Because of varying precedent on whether a warrant is required already, many companies, including Google, already demand one.”

As the world becomes increasingly digital, these arguments will continue to blossom.

More from Morning Mix

By sarahchrist77708548, May 16 2016 08:18PM

The US Congress has seven months to block a potentially massive expansion of the government’s ability to hack into suspects’ computers.

At the FBI’s request this week, the supreme court ruled that federal judges should be able to issue hacking warrants to federal law enforcement for anywhere in the US if the suspect has tried to hide their location, as criminal suspects are wont to do.

Additionally, the FBI could get authority to infiltrate any computer – regardless of the owner – if it has already been taken over by bad hackers.

The changes to so-called “rule 41” go into effect 1 December unless Congress acts to block them. The move has set up a showdown with Senator Ron Wyden, the most senior Democrat on the Senate intelligence committee, who is marshaling the opposition on Capitol Hill. He told the Guardian on Friday that he plans to introduce a bill blocking the court’s move.

FBI demands new powers to hack into computers and carry out surveillance

Read more

The debate offers a unique window into the struggle to maintain America’s protections against unreasonable searches in the digital age.

Many of the rules were written for a world based on searching physical spaces, like a desk, and at distinct locations, like an office. Such rules often don’t adapt well to the era of the internet and ubiquitous online services, where it is also possible to, in theory, search millions of computers at the same time.

FBI confirms it won't tell Apple how it hacked San Bernardino shooter's iPhone

Read more

The issue flared up earlier this week when two judges struck down search warrants for suspected users of child sex abuse websites. The FBI had taken over the website in an attempt to trap users and eventually searched hundreds of computers after a federal magistrate in Virginia issued a warrant to hack all visitors to the website.

The government reasoned this was permissible, in part, because visitors to the site were trying to conceal their location by using the Tor browser, which can help anonymize internet users. In this case, the FBI had found a way to hack the service to unmask visitors to the sex abuse website.


Civil liberties advocates, acknowledging the ickiness of the case, cried foul. Not because they wanted to defend child sex abuse material, but because, they said, domestic law enforcement shouldn’t be able to search potentially millions of computers based on the authority of one judge’s order.

Judges in Oklahoma and Massachusetts have ruled that the Virginia warrant targeting suspects in their territories is invalid and the evidence that they visited the sex abuse website consequently is inadmissible. And without digital proof that the suspects visited the criminal websites, there isn’t much of a case against them.

Wyden, without getting into the specifics of the case, said he agreed US law enforcement shouldn’t be able to conduct such bulk surveillance.

“One warrant for one judge can, in effect, reach millions of computers,” he said on Friday. “This is really a big issue when you’re talking about expanding the government’s hacking and surveillance authority.”

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Sarah Christensen