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.