The Fifth Amendment right against self incrimination looks beautiful on paper. However, prosecutors are making inroads in countering Fifth Amendment defenses against forcing decryption of computers and computer hard drives, at least when the foregone conclusion doctrine applies.

Seizing and searching computers is big business for law enforcement, for such investigations as child pornography, terrorism, and online copyright infringement. At the same time, computer encryption technology continues advancing, to the point that law enforcement cannot always crack such encryption, leading law enforcement to seek court orders requiring the computer owner to decrypt the computer technology.

On March 20, 2017, the United States Court of Appeals for the Third Circuit affirmed the continued civil contempt detention/jailing of one John Doe for his continued refusal to decrypt two hard drives that were lawfully seized by law enforcement. U.S. v. Apple Macpro Computer, No. 15-3537 (3rd Cir., March 20, 2017).  In affirming such civil detention of John Doe, Apple Macpro relies on the foregone conclusion doctrine, which doctrine the Eleventh Circuit describes as follows:

“The ‘foregone conclusion’ doctrine is a method by which the Government can show that no testimony is at issue. This is related to, but distinct from, the Government’s task in a criminal case brought against an individual given use and derivative-use immunity to show that evidence protected by the Fifth Amendment privilege is admissible because the Government could have obtained it from a ‘legitimate source, wholly independent of the compelled testimony.’ Kastigar, 406 U.S. at 460, 96 S. Ct. at 1665. If in the case at hand, for example, the Government could prove that it had knowledge of the files encrypted on Doe’s hard drives, that Doe possessed the files, and that they were authentic, it could compel Doe to produce the contents of the files even though it had no independent source from which it could obtain the files.”

In re Grand Jury Subpoena Duces Tecum Dated Mar. 25, 2011, 670 F.3d 1335, n. 19 (11th Cir. 2012).

Much can be written about how Apple Macpro grossly erodes the Fifth Amendment. Instead of my going into further detail on that unacceptable erosion, I point out the following additional critical issues raised by Apple Macpro;

– The law permits people to encrypt their computers. The Fifth Amendment should bar courts from requiring anyone to hand over their computer passwords, versus ordering decrypting computer technology without revealing the password.

– It is critical that courts not order a person to decrypt his or her computer technology without first giving the person an opportunity to litigate against such an order.

– If a person shares his or her computer passwords, that might deteriorate the person’s Fifth Amendment argument against being ordered to decrypt computer technology.

– Nobody can read what is in another person’s mind. Yet, the trial court in Apple Macpro concludes that Doe was prevaricating that he forgot the password to the hard drives in question, and thus ordered his ongoing detention until he decrypts the hard drives.

– If law enforcement comes with a search and seizure warrant against your computer technology (or for any other property, for that matter), that does not mean that the property owner or custodian has any obligation to assist with the search, whether such assistance be showing where the sought items are located, helping to open the property, providing passwords to the technology, or decrypting the computer technology. An exception to the foregoing might be if the search warrant says the owner of the technology must decrypt it. I would argue that such an order in a search warrant is unwarranted, and that decryption should be a matter to be fully litigated by the parties, and not to be ordered through the one-sided, ex parte nature of a search warrant issuance. If faced with a search warrant directing the owner to decrypt the computer technology, the owner must decide whether or not to risk standing firm against decrypting until first consulting with a lawyer.