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Forced Decryption and the 5th Amendment | | | While the Court’s analysis mostly seems correct, I have a few problems. First, regarding the distinction between a physical and a testimonial act, the Court lists some implied factual statements that determine whether Doe’s decryption and production of the drives would be testimonial. The Court states that “decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt those files.” Id. The latter two factors can be classified as using one’s mind, but the first factor should not be involved if Doe were to decrypt and produce the drives. By producing the drives, Doe would be showing that he had possession, control, and access to the drives and that he had the ability to decrypt the files. Regarding the first factor, however, Doe would not necessarily be showing that he had knowledge of the existence and location of potentially incriminating files. The government just needs the decryption passwords so it can access the encrypted partitions inside the drives. | |
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> | I don't think this
point is correct. His production doesn't prove to your
satisfaction that he knows the location of incriminating files. It
is certainly evidence on that subject, however, and he has "used his
mind," if you really need to apply such a ridiculous test, to
produce it. I don't know why you're picking this nit in the first
place, but I don't think you're picking it correctly.
| | | 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.
However, the focus should simply be on whether implied factual statements are involved. A key vs. combination analogy seems to wrongly focus on a physical production of a key as opposed to a mental production of a combination, and the involvement of implied factual statements should be the primary factor. | |
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Only if you're prepared to give up on all the law about surrendering
the keys, which also involves implied factual admissions.
| | | Under this proposal, if compelling the production of a key or combination to a safe ends up involving implied factual statements, then such an act of production would be testimonial. In this case, the key factor should be whether the government actually knows that Doe has “knowledge of the combination”—whether Doe has the decryption passwords for the drives. If the government is unsure whether the suspect has knowledge of the combination, then the act of production should qualify as a testimonial act because such an act would be accompanied by the implied factual statement that the suspect knew the combination (e.g., a decryption password). However, if the government knows that the suspect knows the combination, then producing the combination should qualify as a physical act. This would be functionally similar to asking a suspect to produce a key; there is no implied factual statement.
Under this focus, then, it is the fact that the government is unsure whether Doe has “the combination to the safe” that makes Doe’s decryption and production testimonial—producing the decrypted drives would bring in the implied factual statement that Doe knew the decryption passwords. The focus should simply be on whether implied factual statements are involved; this key point better fulfills the purpose behind the standard of “requiring the use of the contents of one’s mind.” | |
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This is a confusion again between evidence and testimony. The Fifth
Amendment does not prohibit requiring the accused to produce "mere
evidence," which is what a key is. It prohibits requiring
self-incriminatory testimony. Producing a combination is not a
Fifth Amendment violation if it occurs because a search warrant was
executed, or a constitutional but warrantless search occurred, and a
slip of paper with your safe combination was found in the same
wallet as your driver's license. But if a decryption key requires a
passphrase you have to type, as well as the keyfob they can get with
a search warrant, that's testimony. I don't care very much for the
CA's way of explaining this, but they haven't said anything that
isn't completely obvious if you don't make an unnecessary mess of
it. Which it seems to me at a minimum that they and you are
collaborating in doing.
Moreover, I don't understand why we're bothering about this. The
District Judge was asked to grant immunity and enforce the subpoena.
If a sufficient grant of immunity had been made, the constitutional
analysis of the District Judge would have been strictly irrelevant
anyway. The prosecutor is not required to be violating the Fifth
Amendment otherwise in order to ask for an immunity grant. The CA
is obviously correct that the minimum grant was use immunity, which
had to extend not only to the testimony itself, but to the use of
any incriminating material derived solely from the testimony.
That's not law about encrypted disk drives, that's settled law about
immunity. Despite some bloviating LA commentator's usual imprecise
showmanship, when you get there, it's Gertrude Stein's Oakland after
all.
| | | -- VictorA - 03 Mar 2013
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