The Court stated two ways for the government to avoid implicating this right. First, Doe’s decryption and production would have to be a physical act, not a testimonial act that “requires the use of the contents of his mind.” Second, the government would have to already know what was inside the drives. The government would only be asking Doe to produce the decrypted drives; the knowledge of the content would have been a foregone conclusion. However, the Court held that the government failed to satisfy either method. Doe’s decryption and production of the drives was a testimonial act, and the “factual communications associated with the decryption and production [we]re not foregone conclusions.” Id. at 1346.

Second, the Court uses a useful analogy in comparing Doe’s situation to surrendering a combination as opposed to surrendering a key; however, I believe that the Court’s analogy should focus on a different point. The Court believes that producing a key is a physical act while producing a combination is a testimonial act that requires use of the contents of one’s mind. The Court analogized Doe’s situation to producing a combination, saying that “[r]equiring Doe to use a decryption password is [like] requiring the production of a combination because [it demands] the use of the contents of the mind, and the production is accompanied by the implied factual statements noted above that could prove to be incriminatory.” Id.