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Accused had to unlock laptop with face

A US federal judge last week granted a Department of Justice request to place an alleged US Capitol rioter in front of his laptop to unlock the device with facial recognition technology, according to a report in the ABA Journal.

US District Judge Dabney Friedrich of the District of Columbia ruled in favour of prosecutors, who said that the Microsoft Surface Pro laptop was likely to contain video taken from the defendant’s helmet camera during the Capitol attack.

Prosecutors obtained access to defendant Guy Reffitt’s laptop after the hearing, his lawyer confirmed to CNN.

Video files deleted

Prosecutors wanted to see the laptop contents after finding that three video files had been deleted from the helmet camera a few days after the 6 January riot, including two labelled ‘DC’, according to the Dallas Morning News.

According to the government’s motion to compel Reffitt to unlock the laptop, Reffitt traveled to Washington, DC, from his home in Wylie, Texas, armed with an AR-15 rifle and a Smith & Wesson .40 caliber handgun. He carried his handgun in a holster on his waist at the Capitol, prosecutors said.

Reffitt was charged with five offences in a June indictment, including entering restricted grounds while armed.

According to the ABA Journal, the US Government argued that compelling a defendant to place his face in front of a computer camera would not violate his Fifth Amendment right against self-incrimination because it was not testimonial in nature.

“All of the potentially testimonial assertions implicit in Reffitt’s act of producing the decrypted subject device are already known to the government,” prosecutors said.

“The government knows that the subject device exists, that Reffitt had ownership or control over it, that Reffitt can decrypt it, and that it contains relevant video files. Under the foregone conclusion doctrine, Reffitt’s act of producing the decrypted subject device is not protected by the Fifth Amendment.”

The US Government also argued that the files on the computer, unlike evidence such as child pornography, were not themselves contraband and not an element of a crime.

'Courts differ' on unlocking

In his response to the government motion, Reffitt’s court-appointed lawyer, William L Welch III, said Reffitt did not think he had a passcode or a PIN to the computer, but if he did, he didn’t remember it.

Prosecuting him for failure to remember something that might never have existed would violate due process, he said.

“While an attempt to biometrically unlock might be appropriate, ordering someone to remember something, which he does not, and which might not even exist, is unreasonable,” Welch wrote. “Even if the court concludes that an order might be appropriate, then Mr Reffitt reserves and maintains all objections to the government offering or arguing that he unlocked anything.”

Welch said that the US Government had relied on “generalisation, mischaracterisation and exaggeration”, as well as “bragging” and comments in the news media. The court should be “extremely sceptical” of government claims, he said.

The ABA Journal, citing technology website Gizmodo, said that US courts had differed on whether forcing defendants to unlock electronic devices violated their right against self-incrimination.

Reffitt has been in custody since 19 January, and most of his time was spent in solitary confinement, according to Welch’s response. Reffitt had to spend three days hospitalised in intensive care because he was not given access to prescribed medication, Welch said.