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February 23, 2012

The Fifth Amendment Protects You From Being Compelled To Unencrypt Your Hard Drive, According to the Eleventh Circuit


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]

965843_computer_bit.jpgLaw 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.

July 24, 2009

The First Circuit Helps Grand Jury Witnesses

Testifying before a grand jury can be nerve wracking. Your lawyer can't be with you. The prosecutors can ask you almost anything, including questions that call for hearsay. You have a right to refuse to testify based on your Fifth Amendment Right against self-incrimination, but the government can overcome that by giving you immunity (for a fuller discussion of immunity, see this article on the topic that I co-wrote with Roger Spaeder).

If you are testifying under an order of immunity, the only way you can refuse to answer a question is if the question calls for an answer that would reveal a privilege, such as the attorney-client privilege or spousal privilege. And it's up to the witness, without his lawyer, to make the determination of whether privilege applies.

To make things even worse for witnesses, you don't have a right to get the transcript of your testimony when you're done. You could testify for hours, based on a stack of documents that you may never have seen before, and at the end of the time you may not remember what documents you saw or what you said about them. Even if you're intending to be fully honest, the most steel-trapped minds can get turned around in a grand jury proceeding.

Happily, courts are starting to recognize that this is not a fair way to treat people who testify before a grand jury. The First Circuit recently joined the D.C. Circuit in expanding the rights of access that a witness has to his grand jury testimony.

The D.C. Circuit has held that grand jury witnesses have a right of access to their grand jury transcripts (though the mechanics of that right have been later narrowed by the U.S.. District Court in D.C.).

The First Circuit held that grand jury witnesses have to meet a lesser standard in showing that they'd like access to their grand jury transcripts. The court recognized that people have a compelling interest in seeing their transcripts, and that the government's interest is relatively limited. Moreover, the government is obligated to create grand jury transcripts anyway; it won't slow things down unduly to show the transcript to a witness.

The First Circuit held that the lesser standard was met where the prosecutors warned the witnesses repeatedly that he could be prosecuted for perjury. The court suggests, but doesn't rule on, just how far this lesser standard would go. And the opinion, by it's terms, deals only with access to the grand jury transcript, not a copy.

Clearly, the First Circuit's opinion is a step in the right direction. It could go farther, and it would be more fair to grand jury witnesses if it did, but it's nice to see that New England is becoming a little more like D.C.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

July 22, 2009

How Not to Respond to a Grand Jury Subpoena

The Eleventh Circuit recently decided a case that highlights why responding to a grand jury subpoena needs to be taken seriously. The case is United States v. Hoffman-Vaile. As a teaser, a doctor is going to prison for longer than she should because of how she handled a grand jury subpoena.

In the case, a doctor, Dr. Hoffman-Vaile, was being investigated for upcoding a series of dermatological procedures. Basically, the doctor was billing Medicare for a surgical procedure called "an adjacent tissue transfer or rearrangement that measures more than 30 square centimeters and is unusual or complicated." This procedure was billed under code 14300.

The government's suspicion was that Dr. Hoffman-Vaile using the billing code 14300, but, in fact, she was do a simpler dermatological procedure, with a different billing code. Telling Medicare that you're doing a procedure that pays better than the one you're actually doing is called "upcoding," and it's one form of medical billing fraud.

Health and Human Services began investigating Dr. Hoffman-Vaile when it noticed that she used billing code 14300 more times than any other code, and that she used billing code 14300 more than any other doctor in Florida in 1998 or 1999.

These are bad facts. The way Dr. Hoffman-Vaile responded, though, made them much worse. The Inspector General of Health and Human Services raided the doctor's offices with a search warrant. They found files were missing. They then issued a grand jury subpoena asking for those missing files and any accompanying photographs.

Unfortunately, it appears from the opinion that Dr. Hoffman-Vaile directed her employees to strip the files of the photographs before she sent them to the government to satisfy the grand jury subpoena. Since one of the issues about whether code 14300 is proper is the size of the affected area in the procedure, it matters what the photos show.

Dr. Hoffman-Vaile was then indicted for both health care fraud and obstructing justice for stripping the files. She was convicted and sentenced to five years in prison.

I have represented many clients in fraud cases. Basically, the issue is whether your client is a liar. It is really hard to argue that your client is not a liar if the government has evidence that your client tried to lie to the prosecutors, agents, or grand jury during the investigation. That is why a grand jury subpoena has to be looked at very carefully and responded to with the same amount of care.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.