Forced Decryption and the 5th Amendment

-- By VictorA - 03 Mar 2013

On February 23, 2012, the Wall Street Journal and Volokh Conspiracy reported that the Court of Appeals for the Eleventh Circuit decided that forcing a suspect to decrypt and provide a hard drive when the government did not already know what it contained violates the suspect’s Fifth Amendment protection against self-incrimination. While most of the Court’s analysis seems correct, I have a few problems with some parts.

Facts of the Case

The facts of the case, In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, are as follows. The government served a subpoena duces tecum on the suspect (“Doe”), compelling him to produce the unecrypted contents located on the hard drives of his laptop computers and five external hard drives. In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, 670 F.3d 1335, 1337 (11th Cir. 2012). Doe refused to comply with the subpoena, instead invoking his Fifth Amendment right against self-incrimination. Id. at 1338. The U.S. Attorney applied to the district court for an order that would grant Doe immunity and require him to respond to the subpoena. Id. The court rejected Doe’s explanations, judged him to be in contempt of court, and ordered him incarcerated. Id.

The 11th Circuit's Opinion

The 11th Circuit arrived at two overall conclusions. First, the district court erred in concluding that Doe’s act of decryption and production did not constitute testimony. Second, “in granting Doe immunity, the court erred in limiting his immunity, under 18 U.S.C. §§ 6002 and 6003, to the Government’s use of his act of decryption and production, but allowing the Government derivative use of the evidence such act disclosed.” Id. at 1341. I will be focusing on the first issue—“whether the act of production may have some testimonial quality sufficient to trigger Fifth Amendment protection when the production explicitly or implicitly conveys some statement of fact.” Id. at 1342.

The Court stated two ways for the government to avoid implicating this right. First, Doe’s decryption and production would have to be a physical act, not a testimonial act that “requires the use of the contents of his mind.” Second, the government would have to already know what was inside the drives. The government would only be asking Doe to produce the decrypted drives; the knowledge of the content would have been a foregone conclusion. However, the Court held that the government failed to satisfy either method. Doe’s decryption and production of the drives was a testimonial act, and the “factual communications associated with the decryption and production [we]re not foregone conclusions.” Id. at 1346.

Problems with the Court's Analysis

While the Court’s analysis mostly seems correct, I have a few problems. First, regarding the distinction between a physical and a testimonial act, the Court lists some implied factual statements that determine whether Doe’s decryption and production of the drives would be testimonial. The Court states that “decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt those files.” Id. The latter two factors can be classified as using one’s mind, but the first factor should not be involved if Doe were to decrypt and produce the drives. By producing the drives, Doe would be showing that he had possession, control, and access to the drives and that he had the ability to decrypt the files. Regarding the first factor, however, Doe would not necessarily be showing that he had knowledge of the existence and location of potentially incriminating files. The government just needs the decryption passwords so it can access the encrypted partitions inside the drives.

Second, the Court uses a useful analogy in comparing Doe’s situation to surrendering a combination as opposed to surrendering a key; however, I believe that the Court’s analogy should focus on a different point. The Court believes that producing a key is a physical act while producing a combination is a testimonial act that requires use of the contents of one’s mind. The Court analogized Doe’s situation to producing a combination, saying that “[r]equiring Doe to use a decryption password is [like] requiring the production of a combination because [it demands] the use of the contents of the mind, and the production is accompanied by the implied factual statements noted above that could prove to be incriminatory.” Id. However, the focus should simply be on whether implied factual statements are involved. A key vs. combination analogy seems to wrongly focus on a physical production of a key as opposed to a mental production of a combination, and the involvement of implied factual statements should be the primary factor.

Under this proposal, if compelling the production of a key or combination to a safe ends up involving implied factual statements, then such an act of production would be testimonial. In this case, the key factor should be whether the government actually knows that Doe has “knowledge of the combination”—whether Doe has the decryption passwords for the drives. If the government is unsure whether the suspect has knowledge of the combination, then the act of production should qualify as a testimonial act because such an act would be accompanied by the implied factual statement that the suspect knew the combination (e.g., a decryption password). However, if the government knows that the suspect knows the combination, then producing the combination should qualify as a physical act. This would be functionally similar to asking a suspect to produce a key; there is no implied factual statement.

Under this focus, then, it is the fact that the government is unsure whether Doe has “the combination to the safe” that makes Doe’s decryption and production testimonial—producing the decrypted drives would bring in the implied factual statement that Doe knew the decryption passwords. The focus should simply be on whether implied factual statements are involved; this key point better fulfills the purpose behind the standard of “requiring the use of the contents of one’s mind.”

-- VictorA - 03 Mar 2013