Child Porn Defendant Can Be Forced to Decrypt Hard Drives

Bloomberg Law’s combination of innovative analytics, research tools and practical guidance provides you with everything you need to be a successful litigator.

By Tera Brostoff

A man who refused to decrypt two external hard drives that the government believed contained files of child pornography was properly held in civil contempt, the U.S. Court of Appeals for the Third Circuit held Mar. 20 ( United States v. Apple MacPro Comput. , 2017 BL 85780, 3d Cir., No. 15-3537, 3/20/17 ).

The district court found that forcing the defendant to decrypt his devices wouldn’t violate the Fifth Amendment because it was already a “foregone conclusion” that the fact that child pornography files were on this devices. This holding was not a “plain error” that should be overturned, the appellate court said.

The “foregone conclusion” doctrine provides that the Fifth Amendment doesn‘t shield an act of production, where any potentially testimonial component of the production is a “foregone conclusion” that “adds little or nothing to the sum total of the Government’s information.”

But the Third Court avoided the question of whether the district court correctly applied the foregone conclusion exception, stating in a footnote that the focus of the exception could also have been on whether the defendant’s knowledge of the password to decrypt was sufficient to satisfy the foregone conclusion doctrine.

“It is important to note that we are not concluding that the Government’s knowledge of the content of the devices is necessarily the correct focus of the ‘foregone conclusion’ inquiry in the context of a compelled decryption order,” the court said. “Instead, a very sound argument can be made that the foregone conclusion doctrine properly focuses on whether the Government already knows the testimony that is implicit in the act of production. In this case, the fact known to the government that is implicit in the act of providing the password for the devices is ‘I, John Doe, know the password for these devices.’”

Decryption Order

John Doe’s two iPhones, Apple Mac Pro computer, and two external hard drives were seized pursuant to an investigation into Doe’s access to online child pornography. Doe voluntarily provided the password for one of the iPhones, but refused to provide the passwords to decrypt the computer or the external hard drives. He eventually provided a password to access the other iPhone, but he refused to provide access to an application on the phone that contained encrypted information.

However, a forensic analyst discovered the computer’s password. A forensic examination of the computer revealed that Doe had images of children and had visited websites associated with child exploitation. The forensic examination also revealed that Doe had downloaded thousands of child pornography-related files. The files themselves weren’t on the computer, but rather were on the encrypted external hard drives, and, therefore, couldn’t be accessed.

In August 2015, a magistrate judge ordered Doe to produce all of his encrypted devices in a fully unencrypted state. Rather than appeal the order, he moved to quash the government’s application to compel decryption, arguing that decryption would violate his Fifth Amendment privilege against self-incrimination.

The magistrate judge denied the motion to quash, holding that because the government already knew the devices contained child pornography, the act of decrypting wouldn’t be testimonial.

Doe didn’t appeal the decision. He instead stated he couldn’t remember the passwords necessary to decrypt the hard drives.

The district court held Doe in contempt pursuant to the All Writs Act, and Doe appealed.

Subject Matter Jurisdiction

According to Doe, the district court lacked subject matter jurisdiction to issue the decryption order.

The All Writs Act permits federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”

According to Doe, the government should’ve compelled his compliance by means of the grand jury procedure. But the Third Circuit disagreed.

“The grand jury process … is not the exclusive means by which the Government may collect evidence prior to indictment,” the court said.

The magistrate judge had subject matter jurisdiction under Federal Rule of Criminal Procedure 41 to issue a search warrant, the court explained. Thus, according to the court, the decyrption order was a “necessary and appropriate means” of effectuating that search warrant.

Foregone Conclusion?

Doe also argued that the decryption order violated his Fifth Amendment rights. The Third Circuit found that he couldn’t appeal this issue in a challenge to the contempt order.

Nonetheless, the court walked through whether Doe’s argument could overcome a plain error review of the district court’s decision.

The court noted that while the Fifth Amendment implications of compelled decryption is a novel issue for the Third Circuit, the Eleventh Circuit has found that the privilege should apply. In In re Grand Jury Subpoena Duces Tecum, 670 F.3d 1335 (11th Cir. 2012), the government wasn’t able to show whether any files existed on encrypted hard drives and couldn’t show with reasonable particularity that the suspect could access the encrypted areas.

“Unlike In re Grand Jury Subpoena, the Government has provided evidence to show both that files exist on the encrypted portions of the devices and that Doe can access them,” the court said.

Keith M. Donoghue and Brett G. Sweitzer, of the Federal Community Defender Office, represented Doe.

Leslie Caldwell and Nathan Judish, of the Office of the U.S. Attorney, represented the government.

To contact the reporter on this story: Tera Brostoff in Washington at tbrostoff@bna.com

To contact the editor responsible for this story: S. Ethan Bowers at sbowers@bna.com

For More Information

Full text at http://src.bna.com/m8B.

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Litigation on Bloomberg Law