The Federal Criminal Appeals Blog

The Eleventh Circuit held, today, that a person cannot be compelled to unencrypt encrypted files under the Fifth Amendment in In re Subpoena Duces Tecum issued March 25, 2011.

John Doe [FN1] is a man who knows how to keep quiet. He came to the government's attention in the worst of ways. In March of 2010, the government found that someone was uploading child pornography to You Tube. [FN2]

Law enforcement tracked the IP addresses of the person who did the uploading. The IP addresses led them to a series of hotels. The only person common to all the hotels where things had been uploaded from was John Doe.

The government tracked John Doe to a hotel room in California. It got a search warrant to go into his room.

Inside the room, law enforcement found a number of computers and hard drives, capable of storing more than 5 terabytes of data.

The government sent the hard drives to the FBI. The FBI, however, was not able to search it all because much of it was encrypted with TrueCrypt technology. [FN3]

The government issued a grand jury subpoena to John Doe to come and open the encrypted files.

John Doe told the government that he would assert his Fifth Amendment privilege against self-incrimination and refuse to testify under the "act of production" privilege.

Generally, the production of documents or evidence that already exists can't be blocked for Fifth Amendment reasons. (Yes, the government can generally get your diary). However, the act of production privilege allows a person to assert a Fifth Amendment privilege if the act of producing evidence would, itself, incriminate that person.

The United States Attorney's Office, aware of this, sought statutory immunity under 18 U.S.C. 6002. As the Eleventh Circuit summarized the government's immunity position:

The Government stated in its letter served on Doe on April 7, 2011, and before the district court on April 19, 2011, that it would not use Doe's act of production against him in a future prosecution; but it would use the contents of the unencrypted drives against him.

At a hearing on the immunity order, the district court went along with the government's request. It decided that Mr. Doe would be immunized from a prosecution based on his act of revealing the documents, but he would not be immunized if the government could link him to any contraband, say child pornography, found on the hard drives through another means, such as the fact that it was found in his hotel room when they executed a search warrant.

John Doe was unsatisfied with this protection.

He refused to unencrypt the hard drives and was held in contempt and taken into custody. He then appealed that contempt order. [FN4]

The Eleventh Circuit reversed the contempt finding, holding that Mr. Doe was allowed to assert the Fifth Amendment since the statutory immunity he was granted was not as broad as his Fifth Amendment protection.

Basically, the Eleventh Circuit held that the Fifth Amendment protects a person from being compelled to unencrypt a hard drive under the act of production doctrine.

The court of appeals held that the act of production is not testimonial, and thus not subject to Fifth Amendment protection, only if two conditions are met:

First, the Fifth Amendment privilege is not triggered where the Government merely compels some physical act, i.e. where the individual is not called upon to make use of the contents of his or her mind. The most famous example is the key to the lock of a strongbox containing documents, see Hubbell, 530 U.S. at 43, 120 S. Ct. at 2047 (citing Doe v. United States, 487 U.S. 201, 210 n.9, 108 S. Ct. 2341, 2347 n.9, 101 L. Ed. 2d 184 (1988)), but the Court has also used this rationale in a variety of other contexts. Second, under the "foregone conclusion" doctrine, an act of production is not testimonial--even if the act conveys a fact regarding the existence or location, possession, or authenticity of the subpoenaed materials--if the Government can show with "reasonable particularity" that, at the time it sought to compel the act of production, it already knew of the materials, thereby making any testimonial aspect a "foregone conclusion."

Here, unencrypting does require some sort of mental work - it requires a person to recall and use his password. So the first exception doesn't apply.

The second exception is a little more interesting - and this is the part that serves as an ad for TrueCrypt.

The court of appeals explained that when a document encrypted with TrueCrypt, a scan of the hard drive doesn't tell you whether there's something there. Blank hard drive space shows up the same as data.

So, for example, child pornography looks the same as blank hard drive space through TrueCrypt.

Because of that, there is no way for the government to know if there is any contraband in the hard drive which is encrypted. Which means that there is no "foregone conclusion" that there's evidence a crime in those hard drives.

Because neither exception applied, the Fifth Amendment protected Mr. Doe from having to unencrypt his hard drives.

[FN1] - Not his real name.

[FN2] - Seriously? You Tube?

[FN3] - This whole opinion reads like an ad for TrueCrypt, in a sense.

[FN4] - In fact, Mr. Doe was held in custody until he was ordered released after oral argument by the Eleventh Circuit.

Brian Rogers learned the hard way that, sometimes, selling a computer has a downside. As many computer experts recommend, if you're selling a computer you need to wipe the hard drive so that your financial information can't be found by someone else.

Mr. Rogers, however, should not have been worried about the buyer of his computer finding his financial information. Rather, he should have worried about the purchaser finding his child pornography.

Mr. Rogers was a non-commissioned Naval Officer at the Brunswick Naval Air Station in Maine. The police worked with the Naval Criminal Investigative Service (NCIS, for those who don't watch TV). Law enforcement obtained a search warrant.

NCIS and the police worked out that they would search Mr. Rogers condo when he wasn't there. They went in and searched the house while his pregnant wife and small child were home, but Mr. Rogers wasn't.

Instead, as the search was going on, NCIS asked Mr. Rogers' commanding officer to order him to go to the parking lot outside his home. They told him nothing else, except that his wife was ok.

Mr. Rogers went home. Armed police officers were in his house. NCIS wasn't there, but other police were. An officer asked him if he wanted to talk, after explaining the nature of their search. The office explained that Mr. Rogers wasn't under arrest, but that if Mr. Rogers was going to talk, "today's the day."

While they were talking, an NCIS officer arrived.

During that conversation, Mr. Rogers said that he downloaded the illegal images.

The Miranda Challenge

Mr. Rogers challenged that statement, saying that he was not free to resist the questioning, and the statement was un-Mirandized, so that it ought to be suppressed.

The district court denied the motion. Mr. Rogers entered a conditional plea, allowing him to appeal the district court's Miranda decision. The district court sentenced him to five years in the meantime.

The First Circuit's Decision

The First Circuit, in United States v. Rogers - an opinion written by retired Associate Supreme Court Justice Souter - held that Mr. Rogers' statement should have been suppressed.

First, Justice Souter explained that the issue of whether a person is in custody is not really a question of whether the person is free to leave, but more whether he or she is free to stop talking - "the crux of the first element [of a Miranda violation] must be liberty to terminate the verbal engagement with the police, not the liberty to leave."

When it comes to the freedom to stop talking, Justice Souter determined that the military is just different. As the court of appeals explained,

"[T]he most significant element in analyzing the situation is that the military had made certain that Rogers did not walk into it voluntarily, or confront the police with free choice to be where he was."

Because Mr. Rogers was ordered, literally, by his commanding officer, to be present for questioning, Justice Souter concluded for the First Circuit that he would not have felt free to terminate the questioning.

Because Mr. Rogers would not have felt free stop answering questions, his Miranda rights were violated.

The case was then remanded to see if a later curative instruction might have taken care of the Miranda violation.

At the end of June, the Supreme Court decided a case that will fundamentally change much about criminal procedure. The case is Melendez-Diaz v. Massachusetts, and the Court held that folks charged with a crime have the right to cross-examine the lab technicians who submit reports against criminal defendants.

This case will make the next few years of being a criminal defense lawyer very interesting.

This case says, in essence, that Crawford v. Washington, means what it says. If the government is going to introduce evidence against you at trial, it has to make sure that every single witness who is going to provide evidence against you testifies and is available to be cross-examined.

The impact of this decision on drug cases and DUI cases will be almost immediate - it will be harder for the government to convict because they will have to call more witnesses to the stand. And those witnesses will be subject to cross examination. Moreover, it will open up new lines of attack by defense lawyers on government witnesses.

Less clear, though, is how this will affect other prosecutions. There is language in the opinion that says that when a clerk of court submits an affidavit that he has looked in the court files and does not see any records of a specific kind, that he has to be available for cross-examination.

Assume that language sticks (it's arguably dicta now); it could mean that IRS certificates that a person never filed income tax returns will require an agent to testify. It could mean that in a felon in possession of a firearm case, the governor's office will have to send a representative to testify that the defendant was never pardoned. It could mean in an immigration case that an Immigration agent will have to testify as to the fact of a person's deportation, rather than proving that through documentary evidence.

The point is, we don't know exactly how this will play out; there are a lot of ways to use it and see how far the Court will let this go. Which makes it very exciting!

The second rule of being charged with a crime is to not talk about being charged with a crime. Do not talk about being charged with a crime with anyone who is not your lawyer.

Your communications with your lawyer are protected. Unless you're hatching a crime or scheming up a lie with your lawyer, the government cannot find out what you talk about with your lawyer.

Conversations with other people are not protected. The government can learn what you told your mom. It can subpoena your dad. A prosecutor can make your sister talk. Your boyfriend can be brought before a grand jury.

Jurors will find your words through the voice of your family and friends to be very persuasive and credible evidence against you. Do not create such powerful evidence.

You may think your family will lie for you. Your friends may be willing to protect you. But that's a horrible position to put people in and it may not work. The only thing worse than going over a cliff is taking your loved ones with you.

Continue reading "The second rule of being charged with a crime" »

Happily, Roxana Saberi was released from custody in Iran. News reports are that she confessed to being a spy for the United States. To be clear, she reports that she was never tortured, but, understandably, found the experience very mentally challenging.

What's remarkable is how easily people accept that she falsely confessed to being a spy. In almost every criminal case with a confession, the immediate knee-jerk reaction is that the person is guilty. Work can be done by a skilled lawyer to try to bring a jury to understand that, sometimes, people falsely confess, but it isn't a given in any situation.

Neither Roxana Saberi and a person accused of a crime in the United States who has falsely confessed were tortured, and both gave their confessions under very difficult emotional and physical circumstances. There may be some differences in the stress Roxana Saberi and the U.S. suspect were facing, but I don't think that explains why people react differently to the two.

What's the difference between Roxana Saberi and the average criminal defendant?

Continue reading "Roxana Saberi should be included in a model jury instruction" »

The first rule of being charged with a crime is do not talk about being charged with a crime. Or, the alleged crime itself.

If possible to imagine, that rule became more important this week as the Supreme Court announced its decision in Montejo v. Louisiana held that the police could question a criminal defendant who had already had a lawyer appointed to represent him in a case, about that case. So, the old rule from Michigan v. Jackson that the police cannot question someone once they have a lawyer in the case no longer applies across the board.

What does this mean?

Continue reading "The first rule of being charged with a crime" »