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November 12, 2012 Articles

The Fifth Amendment Versus Compelled Production of Encrypted Data

The case law on the constitutional protections for compelled production of encrypted data is contradictory and uncertain.

By Jayashree Mitra and Stefan Mentzer

Encryption programs that allow users to protect their private electronic data from outside eyes are increasingly popular, as more and more individuals and companies seek to secure confidential information stored in personal electronic devices, local drives, and servers. But when law enforcement officials seize such devices in criminal proceedings, an important question arises: Can the government compel users to provide access to encrypted content without violating their Fifth Amendment protections against self-incrimination?

This is a relatively novel issue. Jurisprudence on the question is sparse and contradictory, and the courts that have considered it have struggled to balance the legitimate needs of law enforcement against individuals’ constitutional rights. This article reviews the handful of decisions that have addressed the issue.

Finding Compelled Production Constitutional
Earlier this year, a Colorado federal district court found that compelling production of the contents of an encrypted hard drive did not infringe the device owner’s Fifth Amendment rights. In an opinion widely criticized by privacy advocates, the court centered its decision on the argument that the law enforcement officials were already aware of the contents of the drive and that production would merely affirm statements made by the suspect.

In United States v. Fricosu, 841 F. Supp. 2d 1232 (D. Colo. 2012), the defendant Fricosu was the target of an investigation by the Federal Bureau of Investigation (FBI) into a mortgage fraud scheme. Pursuant to a search warrant, the FBI seized six computers from Fricosu’s home including one encrypted laptop. The FBI subsequently recorded a telephone conversation between Fricosu and her incarcerated ex-husband in which Fricosu described the laptop as containing encrypted documents related to the alleged scheme. Based on this conversation, the government sought a search warrant compelling Fricosu to “produce the unencrypted contents of the computer.” Fricosu objected, asserting that forcing her to do so would violate her Fifth Amendment rights.

Ruling against the defendant, the court held that the recorded conversation included voluntary statements about the existence, location, and authenticity of mortgage-fraud documents; as a result, production of the decrypted files would merely compel the defendant to affirm those statements. The court reasoned that production would not provide the government with information it did not already have. Further, as the government had offered the defendant immunity precluding the government from using her act of producing decrypted computer files, the court held that her act of production would not be used as a necessary link in the chain of evidence against her.

The court in Fricosu relied heavily on the reasoning in In re Grand Jury Subpoena to Boucher, 2009 WL 424718 (D. Vt. Feb. 19, 2009), in which the court ordered a suspect to produce the decrypted contents of his hard drive. In Boucher, government officials opened the suspect’s computer during a border search and saw images containing child pornography and file names suggestive of child pornography. The laptop was seized but was found to be password-protected when powered up again. The court ordered the suspect to produce the files unencrypted and ruled that “[w]here the existence and location of the documents are known to the government, ‘no constitutional rights are touched,’ because these matters are a ‘foregone conclusion.’” 2009 WL 424718, at *3.

The court in Fricosu, however, ignored the fact that there was no such precise knowledge about the files in Fricosu’s computer, whereas in Boucher, law enforcement officials actually saw the files in question. In Fricosu, the government lacked extensive information about the material sought, and its understanding of the documents was largely speculative. Unlike in Boucher, where there was no dispute that the computer contained pornographic images, the existence of incriminating documents in Fricosu’s hard drive was not a foregone conclusion. This distinction is important, as the Eleventh Circuit found in a recent decision.

Finding Compelled Production Unconstitutional
In United States v. Doe,670 F.3d 1335 (11th Cir. 2012), the Eleventh Circuit held that compelling production of the encrypted contents of a hard drive violated a suspect’s Fifth Amendment privileges. There, the defendant was arrested as a result of a child pornography investigation. Agents tracked down the defendant by connecting his stay at different hotels with the Internet Protocol addresses he allegedly used to access explicit images. Officers seized his laptops and media devices but were unable to access the encrypted hard drives’ contents or even make a determination as to their contents, and the forensic examiner admitted that it was possible that the drives contained nothing. Despite the lack of specific knowledge on the part of the government, the district court ordered the defendant to produce the drives’ contents, finding they were not testimonial in nature and their use by the government would not be a derivative use.

The Eleventh Circuit reversed, noting that the issue was not whether the contents were testimonial but whether the “act of production” was sufficiently testimonial to trigger Fifth Amendment protections when the production itself “explicitly or implicitly convey[ed] some statement of fact.” The court relied on the Supreme Court’s “foregone conclusion” analysis in Fisher v. United States, 425 U.S. 391 (1976), and in United States v. Hubbell, 530 U.S. 27 (2000), to reach its decision. In Fisher, the Internal Revenue Service issued a summons requiring a taxpayer’s attorney to produce documents provided by the taxpayer. The Supreme Court held that the act of producing the subpoenaed documents did not rise to the level of self-incrimination because the government was not “relying on the truth telling of the taxpayer.” The Supreme Court held that the taxpayer’s production of the documents was not testimonial because the government could establish the existence, location, and authenticity of the documents without inquiring into the contents of the taxpayer’s mind. Thus, there was no Fifth Amendment violation because the government’s knowledge as to these documents was a “foregone conclusion.”

In Hubbell, the defendant had turned over about 13,120 pages in response to a subpoena under an act-of-production immunity and was subsequently indicted for several federal crimes. The defendant moved to dismiss the indictment, arguing that the government would not be able to convict him without the contents of the immunized documents. The Supreme Court agreed, holding that the act of production was sufficiently testimonial to trigger Fifth Amendment protections because knowledge of the underlying testimonial facts was not a “foregone conclusion.”

Comparing Fisher and Hubbell, the Eleventh Circuit noted that the distinguishing factor was the government’s preexisting knowledge of the facts relating to the documents. Under the “foregone conclusion” doctrine, no Fifth Amendment protection would attach even if the compelled act conveyed evidence as to location, possession, and authenticity of the subpoenaed materials if the government could establish with “reasonable particularity” that it was already in possession of such facts.

The Eleventh Circuit dismissed the government’s argument that the “foregone conclusion” doctrine applied in the Doe case, noting that the government could not demonstrate knowledge as to the existence, location, or authenticity of the files and that its own expert admitted that “he had no idea whether there was data on the encrypted drives.” The court ruled that merely showing that the drives “could” contain the files was insufficient and that the act of encrypting the device was not enough to establish that the drives necessarily contained incriminating files.

The Eleventh Circuit further found that the district court could have compelled production of the unencrypted contents if it had offered broader immunity. It held that the district court erred in limiting the proffered immunity to the act of decryption and production while allowing derivative use of the evidence disclosed by the act. The court noted that Supreme Court precedent was clear in establishing use and derivative-use immunity: “No more protection is necessary; no less protection is sufficient.” Immunity only for the act of production without immunizing the contents of the production was insufficient, the court held, regardless of whether the contents were not testimonial in nature, because it would allow the use of evidence derived from the testimonial statement. Both use and derivative use testimony would have to be equally immunized in the case of such compelled production to meet constitutional muster.

Lessons Learned
The Eleventh Circuit articulated most clearly the challenge underlying compelled production and the constitutional limits on such production. In Doe, the government’s knowledge of the contents of the seized hard drives, though not entirely unfounded, was speculative—it was based on an association between Internet Protocol addresses and the defendant’s presence at the hotels. Unlike in Boucher, where border enforcement officials saw the pornographic images and the suggestive file names and therefore had actual knowledge of their existence on the particular device, the government in Doe could only hypothesize that the seized objects contained pornographic content. No evidence suggested that the downloaded images necessarily were stored in the particular devices or that the defendant used the seized devices in his stays at the various hotels.

While Boucher and Doe offer reasonably clear fact patterns in which the extent of the government’s knowledge can be easily established, the facts in Fricosu are somewhat more ambiguous. The extent of the government’s knowledge was based on what was disclosed in the phone call. However, there was no independent confirmation that the documents in question were located on the encrypted drive, much less confirmation of the precise nature or contents of those documents. In this, the facts of Fricosu appear closer to those in Doe, where the scope of the government’s knowledge was confined to circumstantial evidence rather than actual information as to the contents of the encrypted drives.

In summary, the case law on the constitutional protections for compelled production of encrypted data is contradictory and uncertain. Many questions remain unanswered. As electronic devices evolve and networking technologies advance, what level of circumstantial evidence need the government show to establish that its knowledge of the content of encrypted data is a foregone conclusion? This is likely a topic that courts will revisit, as encryption technology increasingly comes into conflict with law enforcement efforts.

Keywords: litigation, pretrial practice and discovery, foregone conclusion, use immunity, derivative use immunity, testimonial statements

Jayashree Mitra is an associate and Stefan Mentzer is a partner with White & Case in New York, New York.

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