Category Archives: Fifth Amendment

New York Times

Uber Executive Invokes Fifth Amendment, Seeking to Avoid Potential Charges New York Times The lawyers for Anthony Levandowski, the former head of Google's self-driving car project who is now leading a similar effort at Uber, said he was broadly asserting his Fifth Amendment rights because there was potential for criminal action in the ... Uber's Anthony Levandowski invokes Fifth Amendment rights in Waymo suitTechCrunch Otto co-founder Anthony Levandowski asserts fifth amendment rights in Uber Vs Waymo lawsuitThe Tech Portal Uber Exec Accused Of Stealing IP From Google Will Plead The FifthForbes Reuters -Business Insider all 46 news articles »

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Uber Executive Invokes Fifth Amendment, Seeking to Avoid Potential Charges - New York Times

Phil Mickelson's lawyer says that he is "innocent of any wrongdoing" in the case.

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Phil Mickelson won't be called to testify in the insider-trading case involving gambler Billy Walters because he would invoke the Fifth Amendment.Bloomberg reports that Mickelson would make use of his rights under the amendment, which protects against self-incrimination, to avoid testifying.

"He is on our witness list, but we understand from his counsel he would invoke his Fifth Amendment if called," said Barry Berke, one of the lawyers in the case.

Walters is accused of making $43 million using insider trading tips from Tom C. Davis, who was the chairman of Dean Foods Co. Walters was a golfing buddy of Mickelson's and passed some of these tips to Mickelson, who used them to make $931,000. Mickelson has since said he will repay this money. The government did not accuse Mickelson of committing a crime or of knowing that the tips he'd received were from an inside source.

On March 22, the Associated Press reported that Mickelson believed he would not be called to testify in the trial.

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Report: Phil to invoke Fifth Amendment if asked to testify in insider-trading case - Golf.com

The Senate Intelligence Committee is in talks to interview Christopher Steele, the former British intelligence operative who compiled the dossier that alleges a conspiracy between the Trump campaign and Russia, three sources with direct knowledge told NBC News.

Steele, however, remains concerned about his safety and is not inclined to leave London. He is also concerned about how he might be treated by the Trump administration, according to the sources. The FBI was poised last fall to pay Steele, a former officer with the British Secret Intelligence Service, for information, but that deal fell through, sources familiar with the matter told NBC News.

Two Congressional officials told NBC News that the Senate Intelligence Committee has not yet reached an agreement on how and when to interview the Trump associates who have volunteered to testify, including Paul Manafort, Carter Page and Roger Stone. If any of those men seek criminal immunity for their testimony, the committee would not be inclined to grant it, officials say. The committee could then subpoena them, but they could assert their Fifth Amendment rights and refuse to answer questions.

Christopher Steele, the former MI6 agent who compiled a dossier on Donald Trump, poses in London where he has spoken to the media for the first time on March 7. Victoria Jones / PA via AP Images

A Russian man accused of attacking computers around the world, including thousands in the United States, pleaded guilty in federal court on Tuesday.

Maxim Senakh, 41, was arrested last year in Finland as he was returning to Russia from vacation a move that authorities in Moscow denounced as "an abuse of the law." Russia tried to persuade Finland not to hand over Senakh to American authorities, but he was ultimately extradited.

Prosecutors said Senakh admits he and his co-conspirators used malware to take over a globe-spanning web of computers, creating a botnet that directed users to Internet scams that generated millions of dollars.

He'll be sentenced Aug. 3 in Minneapolis federal court on one count of conspiracy to commit computer fraud and wire fraud.

President Trumps "cyber czar," ex-New York mayor Rudy Giuliani, has joined the defense team of a gold trader who is under federal indictment for fraud, money laundering and evading sanctions on Iran, and who has ties to Turkish President Recep Erdogan.

Reza Zarrab, 33, was arrested March 19 in Florida. Hes accused of ducking sanctions by moving hundreds of millions of dollars for the Iranian government and Iranian firms via offshore entities and bank accounts.

Prosecutor Joon Kim sent a letter notifying the judge in Zarrabs case that Giuliani had joined the defense, and that Zarrab had also hired ex-U.S. Attorney General Michael Mukasey. Kim said he was "advis[ing] the Court of potential conflicts of interest," since Giuliani and Mukaseys firms also represent some banks Zarrab used in transactions.

Erdogan defended Zarrab when the dual Turkish-Iranian citizen was fingered in a 2013 Turkish corruption scandal that also implicated Erdogan associates. The Turkish leader called Zarrab, who had given his wifes charity $4.5 million, a philanthropist. All charges against Zarrab and Erdogans pals were dropped.

Zarrabs lead attorney, Ben Brafman, told NBC News he would remain as lead counsel, and that neither Giuliani, Mukasey nor their firms would appear in court.

A former New York City prosecutor accused of forging judges' signatures to wiretap a colleague and a detective for personal reasons has been hit with federal charges.

Tara Lenich, 41, was indicted in federal court on Monday, four months after she was arrested and fired by the Brooklyn District Attorney's office, where she was a deputy bureau chief.

Authorities say that after Lenich forged the orders, she misappropriated equipment to eavesdrop on her targets' cellphones and also created bogus search warrants to obtain their text messages.

The scheme came to light when it was noticed that the wiretap orders were renewed again and again. A law-enforcement source said Lenich's motive was jealousy; she had a romantic interest in the detective and viewed a female prosecutor as a rival.

"Unfortunately, sometimes those close to the law stray far from the truth," FBI Assistant Director in Charge William Sweeney said. "As demonstrated today, however, everyone is expected to play by the rules; for this we'll make no exceptions."

Lenich's attorney did not immediately return a call for comment.

The anti-Assad, anti-ISIS group Raqqa Is Being Slaughtered tweeted out a graphic today that said coalition airstrikes on Raqqa, Syria, the ISIS capital, have increased by more than 100 percent since Jan. 1. Kurdish forces and U.S.-backed Syrian fighters are now massing north of Raqqa for a ground assault.

A top financial supporter of Hezbollah was arrested overseas earlier this month on an 11-count indictment unsealed Friday in federal court.

Kassim Tajideen of Beirut, Lebanon is charged with evading U.S. sanctions placed on his because of his financial support for Hezbollah, officially designated as a terror group by the U.S. government.

The arrest came after a two-year investigation let by the Drug Enforcement Administration, and is part of Project Cassandra, which targets Hezbollah's global support network. Tajideen is accused of operating front companies for Hezbollah, and was named a Specially Designated Global Terrorist in 2009.

The indictment says that over the past three years, Tajideen transferred more than $27 million via at least 47 wire transfers to individuals in the U.S., who helped Tajideen continue to do business with U.S. companies and ship U.S. goods out of the U.S.

Mark Warner, the ranking Democrat on the Senate Intelligence Committee, declined Thursday to endorse his House counterpart's assertion that lawmakers have been briefed on "more than circumstantial evidence," that Trump associates colluded with the Russian operation to interfere in the presidential election.

Leaving a closed-door briefing, the Virginia senator was asked by NBC News whether he agreed with Rep. Adam Schiff of California, the ranking Democrat on the House Intelligence Committee.

Schiff told Chuck Todd on MTP Daily Wednesday,"I can't go into the particulars, but there is more than circumstantial evidence now."

Warned responded, "There are ever increasing amounts of smoke."

Senior U.S. officials believe, based on the latest intelligence, that North Korea is not an immediate threat to the U.S. or Japan.

But South Korea is another story. The threat to South Korea, said one official, is "grave and current."

A senior intelligence official said that the U.S. assessment is that North Korea has eight to 10 nuclear weapons, with the number more likely to be eight than 10. That number is in line with estimates by outside experts. The Federation of American Scientists, for example, estimates 10-to-20, but as Hans Kristensen, director of the FAS Nuclear Information Project, says, "it is unclear if they are operational yet."

Miniaturizing warheads to put them on long-range missiles might be a challenge for the North Koreans. But Seoul is less than 40 miles from the DMZ that separates South and North. Korea has many shorter range missiles that could theoretically deliver nuclear payloads inside South Korea, as well as to border regions of China and Russia.

Kim Jong Un looks at a rocket warhead tip in this undated photo. (C) KCNA KCNA / Reuters / Reuters

The Pakistani Taliban said a U.S. drone strike over the weekend in Afghanistan killed a senior military commander who was known for his skill in training suicide bombers.

Qari Mohammad Yasin, also known as Ustad Aslam, died in a drone strike in Afghanistan's Paktika province. He was linked to an attack on the Pakistani military headquarters in Rawalpindi and an attack on a bus carrying Sri Lanka's national cricket team.

"We lost a brave man and the trainer of trainers in a U.S drone attack," said Asad Mansoor, the spokesman of Tehreek-e-Taliban Pakistan Jamaatul Ahrar ( TTP-JA), a splinter group of the Pakistani Taliban, presently based in Afghanistan.

Yasin was given the title "Ustad," or teacher, because he trained suicide bombers.

The family of a former FBI agent turned CIA consultant who vanished in Iran ten years ago filed a lawsuit Tuesday against the government of Iran, saying it had lied to cover up its role in his detention.

The suit seeks damages from Iran for allegedly inflicting emotional distress on the wife and seven children of Robert A. Levinson, a private investigator who was last seen in 2007 on the Iranian island of Kish. He was apparently on an unauthorized CIA mission at the time.

The Iranian government says it does not know what happened to Levinson. The family received a proof of life photo in 2011 showing Levinson in an orange jumpsuit holding a sign saying, "HELP ME." Levinson, whose 69th birthday was on March 10, was apparently kidnapped on March 9, 2007. The suit alleges that the Iranian government is using photographs and video of Levinson in captivity to create the false impression that someone other than the government is holding him.

This undated handout photo provided by the family of Robert Levinson after they received it in April 2011, shows retired-FBI agent Robert Levinson. Levinson family via AP

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Senate Intel Committee May Interview Ex-UK Spy Christopher Steele - NBCNews.com

AUSTIN, TX - MARCH 25: Phil Mickelson looks on after winning his match 4&3 on the 15th hole during round four of the World Golf Championships-Dell Technologies Match Play at the Austin Country Club on March 25, 2017 in Austin, Texas. (Photo by Richard Heathcote/Getty Images)

Phil Mickelson has long been known as one of golf's great talkers, but it seems he won't be opening his mouth at an ongoing insider trading trial. Mickelson, who was cleared last year of any wrongdoing in the case involving gambler Billy Walters, could potentially serve as a witness. However, Bloomberg News reported the five-time major champion is unlikely to be called to the stand because he would invoke his Fifth Amendment right against self-incrimination.

Mickelson's intention, reportedly, was revealed in court on Monday during a sidebar conference between lawyers and the judge.

"He is on our witness list, but we understand from his counsel he would invoke his Fifth Amendment if called," attorney Barry Berke said, according to a transcript obtained by Bloomberg. "So he will not be called as a witness, although his name will be mentioned."

Billy Walters, a golf buddy of Mickelson, stands accused of making $43 million on inside-trading tips received by Tom C. Davis, the former chairman of Dean Foods Co. Mickelson made nearly $1 million in trades involving Dean Foods after receiving information by Walters, but regulators didn't charge him with any crime. Mickelson has paid back the money and has been named a "relief defendant" by the Securities and Exchange Commission.

During jury selection earlier this month, Mickelson's fame was a common topic of discussion.

"Im going to excuse this juror," U.S. District Judge Kevin Castel reportedly told lawyers out of earshot of the potential jurors. "From my observations, there is an attachment. Mr. Mickelsons name is out there, but this juror impressed me with a different level of reaction. The look of rapture on her face at the mention of his name and her repeatedly saying it wouldnt influence her is enough for me."

At last week's WGC-Dell Match Play, Mickelson told the Associate Press, "I'm not a part of that . . . I'm out. I won't be called."

"I haven't even thought about it," Mickelson continued. "I don't think I'm going to say any more."

RELATED: Understanding the Phil Mickelson case

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Phil Mickelson to take the Fifth if called as a witness in insider ... - GolfDigest.com

Up to four agencies are investigating the 2015 pepper spraying of Amber Swink in a seven-point restraint chair by then Montgomery County Sheriffs Office Sgt. Judith Sealey, court documents confirmed.

Now, attorneys defending against Swinks federal civil lawsuit told a judge they would face an impossible decision if Sealey and other Montgomery County Jail leaders give depositions while still facing possible criminal charges.

Since there currently is an ongoing federal investigation as well as a local investigation, county attorneys Anne Jagielski and Joseph Saks wrote in a motion filed in Daytons U.S. District Court, defendants are placed with an impossible decision: to invoke their Fifth Amendment privilege against self-incrimination and waive their opportunity to defend themselves in the civil lawsuit or waive the Fifth Amendment privilege and potentially face criminal charges based on their own testimony.

EARLIER: Dayton police investigating pepper spraying incident

Neither U.S. District Court Judge Walter Rice nor Magistrate Judge Michael Newman have ruled on the defendants motion to stay just the discovery portion of the case, according to the docket.

The motion also shows Montgomery County Sheriff Phil Plummer was subpoenaed to testify in a federal grand jury in Cincinnati in October 2016.

The document also confirmed that jail personnel have been investigated by U.S. Dept. of Justices civil rights division, the U.S. Attorneys Office, the Federal Bureau of Investigation and the Dayton police department.

EARLIER: Sheriffs office sued over Amber Swink incident

Due to the secrecy of criminal investigations, the specifics of any of the pending investigations are unknown, county attorneys wrote, citing Plummers discussions with government officials. It is apparent they are investigating Judith Sealey and the Sheriffs Office as a whole for pending criminal charges.

Sealey, who was promoted to captain early in 2016, was placed on administrative leave in October until the investigations were complete. Sheriffs office representatives declined to comment for this article.

Last month, U.S. Attorney for the Southern District of Ohio Benjamin Glassman wouldnt confirm nor deny a federal investigation into Sealeys actions, but he did say his office coordinates and collaborates with law enforcement agencies to best use resources.

RELATED: Justice in the Jail project: 15 recent lawsuits against area jails

That is, in my opinion, one of the most important roles of the United States Attorneys Office, Glassman said, is that federal government is here to investigate other law enforcement agencies because were not a local player.

The video of Sealey blasting Swink on Nov. 15, 2015 for a second time that night in jail only surfaced when attorney Doug Brannon filed the civil lawsuit. Brannon said he asked the sheriffs office for the video and they couldnt provide it.

The sheriffs office has never been able to locate the video in its computer systems, and Plummer alleged it was stolen property.

RELATED: Sheriff says missing Swink video an isolated incident

It also appears that the Department of Justice is investigating the alleged (destruction) of records relating to said incident, involving, as Plaintiff also alleges in her amended complaint, all of the Sheriff defendants, the motion states.

The documents cites a March 6, 2017, affidavit from Plummer that says the FBI has interviewed jail supervisors and employees regarding electronic services.

Swinks attorney said his client testified in January in a Montgomery County grand jury and that the process is continuing.

At least some evidence has been presented to a grand jury, Brannon said. I dont think the grand jury has reached an opinion or a verdict.

FOLLOW: Mark Gokavi on Twitter and Facebook

Swinks suit names as defendants the Montgomery County Board of Commissioners, Plummer, Sealey, Capt. Chuck Crosby, then-Major Scott Landis and other John and/or Jane Does.

Brannon said no one knows when indictments may come, but that as far as the defendants motion goes: Theyre trying to impede the civil case under the auspices of the criminal investigations.

The scenario of a criminal probe holding up a civil case is similar in some ways to the federal wrongful death lawsuit brought by the family of John Crawford III against Beavercreek police and Walmart.

MORE: Glassman says change in administration wont affect Crawford case

Rice repeatedly has allowed the delay of depositions of Beavercreek police officers Sean Williams and Sgt. David Darkow related to Crawfords Aug. 5, 2014, death at the hands of police, citing the possibility of federal criminal charges. That federal investigation turned 30 months old Friday and has not been resolved.

I do commit that whatever the disposition, Glassman said in February. I will let you know publicly and promptly as soon as we have it.

The Swink lawsuit is one of eight active civil actions filed against jail employees alleging misconduct.

MORE: Crawford cases still unresolved

County attorneys argued that Brannons case is not prejudiced by delaying sheriffs office depositions, but the defense may suffer.

The trier of fact in civil actions can draw a negative inference from a defendant failing to testify in a civil proceeding, as such an inference does not violate the Fifth Amendment or Due Process, the attorneys wrote.

This case has received national media attention, and therefore, the general public is likely interested in the outcome of the litigation. The public has a right to see that justice is served, and a stay in discovery would further ensure the integrity of the litigation.

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Multiple agencies probe jail pepper-spraying, grand juries convene - MyDaytonDailyNews

After years of negotiations, Canyon Lake Property Owners Association (CLPOA) and Elisnore Valley Water Municipal District (EVMWD) entered into a Fifth Amendment to the Lake Lease on March 10, 2017.

What does this mean for Canyon Lake? For one, the Lake Lease that would have expired on December 31, 2022 doesnt expire now until December 31, 2066. With the Fifth Amendment in effect, it also gives CLPOA a unilateral option to extend the Lease another 44 years after 2066 and on the same conditions and terms as are now in effect.

It also means that the Lake Lease payments that were being adjusted every year according to the cost of water will now be adjusted on a yearly basis based on the Consumer Price Index. Additionally, CLPOAs Lake Lease payments will never increase more than four percent per year. The minimum increase will be one percent per year.

CLPOA feels this is a fair and stable payment schedule and projects that it will save CLPOA millions of dollars just over the next 10 years alone. How does this benefit EVMWD? EVMWD gets the benefit of having a predictable and stable revenue stream from the Lake.

During the negotiations, EVMWD was insisting that CLPOA agrees to an onerous indemnity provision that would require CLPOA to indemnify EVMWD for all loss related to the Lake, even if the loss was EVMWDs fault. With the Fifth Amendment in effect, EVMWD is responsible for its mistakes, CLPOA is responsible for its mistakes, as well as those of its members and third parties.

Prior to the Fifth Amendment, there was no mechanism in the Lake Lease to prevent disputes between CLPOA and EMVWD from spiraling out of control. With the Fifth Amendment to the Lake Lease, there are now mechanisms in place to help head off any disputes that may arise between CLPOA and EVMWD. Specifically, there will now be an Interface Committee, comprised of CLPOA Board Members and EVMWD Board Members, who will meet as necessary to discuss any dispute between the parties that may arise. If the dispute persists, the dispute must then go to mediation, before a neutral third party, to see if the parties can voluntarily resolve the dispute. If mediation doesnt work, the dispute is submitted to streamlined arbitration, so it is resolved as quickly and efficiently as possible.

The section of the Lake north of the north causeway, where the river feeds into the lake, is known as Section 26 of the Lake. This section was governed by a separate lease agreement between CLPOA and EVMWD. EVMWD had the ability to grant rights of use to Section 26 to others, under certain conditions. Now, with the Fifth Amendment to the Lake Lease in effect, Section 26 will be governed by the same Lake Lease; however, some special provisions will apply.

EVMWD is permitted to install fencing or other access control devices around Section 26 to prevent visitors from using this portion of the Lake. Section 26 will remain open to CLPOA and its members for the same uses that were previously in effect.

Prior to the Fifth Amendment, there were no requirements with respect to CLPOAs insurance of the Lake. With the Fifth Amendment in effect, CLPOA is required to maintain general liability insurance on the Lake, with EVMWD as an additional named insured, at amounts reasonable to cover any anticipated losses.

According to CLPOA, the current amount is $2MM per occurrence/$2MM in the aggregate. CLPOA and EVMWD have agreed to review the insurance limits on a periodic basis to see if any increase is needed. With this insurance in place, it will help to prevent any disputes between CLPOA and EVMWD.

Is the litigation between CLPOA and EVMWD over? Not all of it. The Tax Case (Riverside Superior Court Case No. RIC 1504034) which is now on appeal (Court of Appeal Case No. CIV NO. E065705) will be dismissed; however, the Declaratory Relief Case (Riverside Superior Court Case No. 1503428) is still pending.

The reason why the Declaratory Relief Case is still pending is because there are still a few important issues, which were not the subject of the Fifth Amendment, that need to be resolved. Both parties are seeking a definitive determination as to where the border of the Lake and shorezone actually lies. The parties also want to come to create a uniform process for future encroachments into the Lake/onto the shorezone, which involves all the necessary stakeholders (CLPOA, CLPOAs Members and EVMWD).

CLPOA wants to be sure that everyone is on the same page in terms of what improvements are being maintained in the Lake/on the shorezone. Currently, there is no standard process between the stakeholders as to what improvements are being maintained, which could lead to inconsistent rights and obligations between CLPOA and EVMWD as to the improvements and property involved. CLPOA wants to change that so that everything is as fair, consistent and predictable as possible. CLPOA says they are committed to cooperating with EVMWD to resolve these remaining issues.

A spokesperson for CLPOA said This truly is a monumental step forward. We are very pleased that hard work from both sides, and the patience and participation of CLPOAs members, has produced this durable and lasting agreement, which will preserve the special character of the Canyon Lake community for decades to come.

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CLPOA enters into Fifth Amendment to Lake Lease | The Friday Flyer - The Friday Flyer

Police reports: Dos Palos teacher fostered sexual, social media relationship with student Los Banos Enterprise Branstetter, a 43-year-old Chowchilla resident, was arrested later that day and refused to answer questions by investigators, invoking his Fifth Amendment right, according to the reports. Police also interviewed a friend of the victim along with other ... and more »

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Police reports: Dos Palos teacher fostered sexual, social media relationship with student - Los Banos Enterprise

by Eric Frederiksen | March 21, 2017

The Fifth Amendment to the United States Constitution protects American citizens from incriminating themselves, but it seems forgotten passwords dont always fall under that. The US Third Circuit Court of Appeals upheld a ruling of contempt from a lower court over a mans claimed inability to remember his drive-decryption password.

A computer, pair of iPhones, and two external drives belonging to the anonymous defendant were seized as part of a child pornography investigation. The court ruling states that the defendant voluntarily provided the password for his iPhones but refused to offer up the passwords for his Apple Mac Pro or external hard drives. Forensic analysts were able to recover the password for the computer, but not the drives. When asked to enter in the passwords for his drives, the defendant entered in a number of incorrect passwords. The judge, however, didnt believe the defendant, and it eventually came out that he did have the passwords and had chosen not to reveal them because of the devices contents.

The court already knew a bit about what it was getting into. In the process of analysis, those forensic analysts had discovered file signatures on the defendants computer that matched the hash values of known child pornography files. They also had testimony from the defendants sister that he had shown her said files on the external hard drives. The court ended up ruling that being forced to produce a password did not count as testimony and, as a result, did not fall under the protection of the Fifth Amendment.

In this particular case, the court had compelling evidence to force the issue, and this is the kind of situation where we want to see justice done, but it could potentially set a dangerous precedent. The Electronic Frontier Foundation toldThe Register that any time suspects are forced to disclose contents of their mind, thats enough to trigger the Fifth Amendment, end of story.

Meanwhile, other legal experts note that data encryption is now standard within many businesses, and an inability to force decryption makes these companies effectively immune from discovery and subpoenas.

The balance between personal privacy and pursuit of justice has never been murkier than it is in the current age of everything-encryption. There simply isnt as much physical evidence for investigators to pore over, and much of the digital evidence is locked up in encryption. At the same time, citizens have a right to privacy and to protecting that privacy.

The EFFs senior staff attorney Mark Rumold expects this question to climb its way up the courts and said he wouldnt be surprised to see the issue make its way to the Supreme Court.

Link:
The Fifth Amendment may not protect our passwords, US Court of Appeals says - TechnoBuffalo

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Ellen M. Gilmer, E&E News reporter

A federal court yesterday rejected an ambitious lawsuit from environmentalists who say federal regulators are biased toward approving natural gas pipelines.

The U.S. District Court for the District of Columbia dismissed a lawsuit from the Delaware Riverkeeper Network that accused the Federal Energy Regulatory Commission of violating stakeholders' due process rights by rubber-stamping gas pipelines.

The group's lawsuit involved a particular proposal, the PennEast pipeline in Pennsylvania, but raised broader claims that FERC's funding structure creates a "structural bias" because the agency's budget is offset by fees and annual charges from natural gas companies.

The claim is based on the Omnibus Budget Reconciliation Act of 1986, which sets the funding mechanism for FERC's natural gas pipeline program. The environmental group says the agency's reliance on pipeline fees results in a violation of constitutional due process rights: depriving the plaintiffs of a neutral decisionmaking body.

FERC lawyers noted in oral arguments earlier this month that the agency's budget is set by Congress, and while the agency uses fees from companies to recoup the cost of the natural gas program, it does not "receive additional revenue when it approves a natural gas pipeline project" (Energywire, March 6).

Judge Tanya Chutkan, an Obama appointee, dismissed the case on procedural grounds, ruling that the group had not properly raised a due process claim, which must demonstrate a deprivation of liberty or property.

"Because Plaintiffs have not identified any liberty or property interest that is cognizable under the Fifth Amendment's due process clause, they have failed to state a claim upon which relief can be granted," she wrote in yesterday's opinion.

Chutkan also rejected the group's partial reliance on a provision of the Pennsylvania Constitution that gives citizens a right to clean air, pure water and conservation of natural resources.

"While [the provision] may confer a public right that would entitle plaintiffs to sue the state of Pennsylvania for failing to protect the environment, it does not create a federal protected property interest for purposes of the Fifth or Fourteenth Amendment," she wrote.

Curtin & Heefner LLP attorney Jordan Yeager, who is representing the Delaware Riverkeeper Network, said he was studying the decision. He would not say whether the group is considering an appeal.

E&E is the leading source for comprehensive, daily coverage of environmental and energy politics and policy.

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Malwarebytes

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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US man loses appeal in child porn encrypted device legal case ... - ZDNet