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Appellate court thwarts government's effort to compel decryption of computer data.

The case of In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011 v. John Doe, 670 F. 3d 1335 (11th Cir. 2012) presents a scholarly review of the Fifth Amendment and its application to government efforts to compel a person to decrypt files in computer hard drives.

This case involved an investigation into child pornography that started with a search warrant by which the government seized a computer and hard drives from a suspect who in the case is referred to as John Doe.

After the government's failed efforts to view the contents of the computer, a grand jury subpoena was issued to Mr. Doe requiring him to produce decrypted files from the computer. Mr. Doe refused, claiming his Fifth Amendment privilege.

In an effort to force Mr. Doe to decrypt the computer data, the government utilized 18 U.S.C. § 6002 and § 6003. However its efforts in this regard were not in compliance with the statute because the government moved the district court to enter the order limiting Mr. Doe's immunity to the act of production privilege that allowed the government to use the contents of the files and leads therefrom against Mr. Doe in any future criminal prosecution.

The district court agreed with the government and in issuing its order compelling Mr. Doe to decrypt the computer data, limited the immunity to the act of production thereby allowing the subsequent use by the government of the contents of the files.

Judge Tjoflat authored the opinion of the Eleventh Circuit, which presents a scholarly review the Fifth Amendment and the principal cases interpreting the application of the Fifth Amendment to production of documents. The Court examined several cases, including the two principal cases on this subject matter, Fisher v. United States, 425 U.S. 391 (1976) and United States v. Hubbell, 530 U.S. 27 (2000).

During the hearing to hold Mr. Doe in contempt for refusing to produce the decrypted data, the government elicited testimony from a forensic examiner, that the hard drives of the computer had been encrypted with a software program called "TrueCrypt." The forensic expert testified that TrueCrypt can make certain data inaccessible, and in so doing, the program creates partitions within the hard drive so that even if one part of the hard drive is accessed, the other parts of the hard drive remain secured. Because the hard drive was encrypted, the forensic examiners were unable to recover any data. The examiner further testified that because of the TrueCrypt program, even blank spaces may appear to contain characters.

The Court referenced TrueCrypt's description in its website, noting: "[F]ree space on any TrueCrypt volume is always filled with random data when the volume is created and no part of the (dismounted) hidden volume can be distinguished from random data. Hidden Volume, TrueCrypt, http://www.truecrypt.org/docs/? s = hidden- volume (last visited January 31, 2012)." Doe at 1340.

This information became significant to the analysis of the act of production privilege. The Court in considering the testimony, made it clear that the contents of the hard drives were not a foregone conclusion, and therefore the case was not controlled byFisher. Rather it was more analogous to the Hubbell case, which the Court also examined in great detail.

The Court held that the act of Mr. Doe's decryption and production of the contents of the hard drives implicated a Fifth Amendment privilege. In this regard it held that Mr. Doe's decryption and production would be testimonial, and not merely a physical act of producing documents which the government was already aware of. Judge Tjoflat held that "the explicit and implicit factual communications associated with the decryption and production are not foregone conclusions." Doe at 1346. The Court drew the obvious conclusion that decryption and production of the hard drives would require the use of the contents of Mr. Doe's mind, and could not be fairly characterized as a physical act that was non-testimonial in nature. Therefore the decryption and production would be tantamount to testimony by Mr. Doe of his knowledge of the existence and location of potentially incriminating files, as well as his possession, control and access to the encrypted files. The Court also ruled that such production would establish that Mr. Doe had the capability to decrypt the files. None of those items were known to the government.

The Court again noted that the government's computer expert admitted that he had no idea whether there was data on the encrypted drives, because of the characteristics of the TrueCrypt program. The Court held that the act of decryption and production was clearly testimonial, and therefore Mr. Doe had the right to invoke his Fifth Amendment privilege.

The Court next considered whether the grant of immunity under § 6002 and § 6003 which was limited to the act of production privilege was sufficient to require Mr. Doe to decrypt and produce.

Title 18 U.S.C. § 6002 and § 6003 are statutes by which the government can compel testimony in the face of a Fifth Amendment claim.

In analyzing this aspect of the case, the Court cited to the seminal case of Kastigar v. United States, 406 U.S. 441 (1972). Kastigar made it clear that the statutory immunity provided in 18 U.S.C. § 6002 and § 6003 is co-existent with the protection of the Fifth Amendment. Therefore immunity provided under § 6002 and § 6003 not only protects against the direct use of the information provided but also from any derivative use of the compelled testimony.

Because of that, the Court held that the district court's order, which limited the § 6002 immunity to act of production privilege and allowed derivative use, was not co-existent with the Fifth Amendment privilege. Therefore Mr. Doe was justified in not producing the documents pursuant to that order.

The Court noted, "Supreme Court precedent is clear: Use and derivative-use immunity establishes the critical threshold to overcome an individual's invocation of the Fifth Amendment privilege against self incrimination. No more protection is necessary; no less protection is sufficient." Doe at 1351.

The Court held that Mr. Doe properly invoked his Fifth Amendment privilege because the immunity offered by the district court's order was not co-extensive with the Fifth Amendment. The district court's judgment of civil contempt was therefore reversed.

The detailed analysis set forth by Judge Tjoflat is deserving of careful review when confronted with issues concerning the forced decryption of computer data.

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