Eleventh Circuit: Forced Decryption is Self-Incrimination

By Robyn Hagan Cain on February 24, 2012 | Last updated on March 21, 2019

The Eleventh Circuit Court of Appeals ruled this week that a child pornography suspect appearing before a grand jury is allowed to invoke his Fifth Amendment right against self-incrimination and refuse to decrypt the contents of his computers.

John Doe, the suspect at the center of the controversy, was served with a subpoena duces tecum, requiring him to appear before a grand jury and produce the unencrypted contents from his laptop computers and five external hard drives. Doe informed the U.S. Attorney that he would invoke his Fifth Amendment privilege against self-incrimination and refuse to comply with the subpoena.

The Attorney General needed Doe to decrypt the files to continue his case, so he obtained an order from the district court, granting Doe immunity and requiring Doe's compliance.

Immunity seems like a good deal for Doe, except the immunity only extended to "[Doe's] act of production of the unencrypted contents" of the hard drives. In other words, the Government wouldn't prosecute Doe for decrypting the files, but it could use the contents of the decrypted files to prosecute him.

Doe, again, invoked his right against self-incrimination, explaining that the Government's use of the decrypted contents of the hard drives would constitute derivative use of his immunized testimony, which was not protected by the court's grant of immunity.

The Eleventh Circuit Court of Appeals agreed with Doe, and held that Doe's decryption and production of the hard drives' contents would trigger Fifth Amendment protection because it would be testimonial, and that such protection would extend to the Government's use of the drives' contents.

Here, the appellate court found that the district court erred on two points. First, it erred in concluding that Doe's act of decryption and production would not constitute testimony. Second, in granting Doe immunity, the district court erred in limiting immunity to the Government's use of his act of decryption and production, but allowing the Government derivative use of the evidence that decryption would disclose.

The Eleventh Circuit's decision could guide another defendant's anti-encryption strategy this week: In Colorado Springs, Ramona Fricosu, who is facing mortgage and real estate fraud charges, has until Monday to decrypt her hard drive for investigators or face contempt charges.

While the Eleventh Circuit's decision is not binding on the Tenth Circuit Court of Appeals, Fricosu could refuse to comply with the decryption order in hope that the Tenth Circuit follows the Eleventh Circuit's lead and finds that decryption amounts to self-incrimination.

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