While the general population infamously understands very little about the Constitution or court system, most everyone has an understanding of the Fifth Amendment’s the right to remain silent. The protection against self-incrimination can cover a variety of activities other than direct speech, and in U.S. v. Apple MacPro Computer, decided on March 20, 2017, the defendant argued that a court order compelling him to decrypt his hard drive violated his Fifth Amendment rights. Although this case did not result in a circuit split because of the facts, the court’s legal reasoning indicates that a circuit split will occur in the near future.
In this case, the police found child pornography on several of John Doe’s devices and had almost conclusive evidence that Doe stored additional illicit material on an encrypted external hard drive. Unable to break the encryption, the police sought and received a court order compelling Doe to unlock the hard drive; however, Doe claimed that he did not remember the passwords and refused to comply. The court concluded that Doe did indeed remember the passwords and found him guilty of civil contempt for not following the court order.
Doe appealed this contempt charge to the Third Circuit, claiming for the first time on appeal that compelling Doe to provide the encryption password would violate his Fifth Amendment rights. While the Third Circuit ultimately concluded that the constitutional issue had not been properly preserved for appeal and the standard of review for contempt of court is plain error, the court still engaged in a preliminary discussion of the merits of the claim.
The Fifth Amendment protects testimonial communication, which can include simple production of evidence if that action explicitly or implicitly discloses additional information. Specifically, the Third Circuit stated that “[b]y producing documents, one acknowledges that the documents exist, admits that the documents are in one’s custody, and concedes that the documents are those that the [Government] requests.” The exception to the rule–which is the cause for the potential circuit split–is that if the testimonial evidence is already a “forgone conclusion” then the Fifth Amendment does not apply. In other words, if the testimony does not provide any new information that aids the government’s case, then it is not self-incriminating.
The question, then, is what information is the defendant providing if he is compelled to type his password?
In this case, the Third Circuit states that Doe would simply be saying “I know the password.” Since the court already determined Doe knew the password, any testimony from Doe decrypting the disk is a forgone conclusion. However, the Eleventh Circuit had concluded that the Fifth Amendment protection would apply because decrypting the disk provides testimony of the contents of the disk, not just knowledge of the password. Supporters of this interpretation argue that because the password directly leads to incriminating evidence, production of the password is protected. Furthermore, the commentators make the technical argument that because encryption changes the actual file, the act of decryption constitutes creating files that did not otherwise exist and thereby crosses the line from production of evidence to testimony.
Others, however, agree with the Third Circuit’s interpretation. As a practical matter, they point out that knowing the password or otherwise having access to a device does not admit anything about the content of the device. The Washington Post author gives the example of knowing the passcode to a sibling’s iPhone does not mean he has any ownership or knowledge of the contents of the phone. Thus, the issue for the forgone conclusion test is narrowed to whether or not the government knows that the defendant knows the password, regardless of the possible contents of the device.
While the Third Circuit’s procedural ruling does not create an actual circuit split, it explicitly called the Eleventh Circuit’s rule into question. As encryption and other privacy technologies becomes increasingly common, I suspect similar Fifth Amendment issues will continue to percolate through the courts, eventually creating circuit splits.