CA3: 5A no bar to using All Writs Act and contempt power to order target to decrypt hard drive

The government can use the All Writs Act to get the target of a search to decrypt a hard drive because it does not violate the Fifth Amendment. Challenging the merits of the underlying order in a civil contempt isn’t the way to review it. Even using plain error review, the contempt order stands. The district court didn’t believe the defendant when he said he couldn’t remember the password when he’d recently accessed the hard drive. United States v. Apple MacPro Computer (Doe), 2017 U.S. App. LEXIS 4874 (3d Cir. March 20, 2017):

In arguing that the Magistrate Judge did not have subject matter jurisdiction to issue the Decryption Order, Doe also challenges the merits of that order, contending that it was not a “necessary and appropriate means” of effectuating the original warrant as required by the Supreme Court in New York Telephone. A contempt proceeding, however, generally “‘does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed.'” United States v. Rylander, 460 U.S. 752, 756, 103 S. Ct. 1548, 75 L. Ed. 2d 521 (1983) (quoting Maggio v. Zeitz, 333 U.S. 56, 69, 68 S. Ct. 401, 92 L. Ed. 476 (1948)); In re Contemporary Apparel, Inc., 488 F.2d 794, 798 (3d Cir. 1973) (same). Furthermore, Doe did not argue in the District Court that the Decryption Order was not an appropriate exercise of authority under the All Writs Act. Thus, even if the propriety of the Decryption Order was before us, our review would be limited to plain error. Brightwell, 637 F.3d at 193. Under this framework, an appellant must show four elements: “(1) there is an ‘error’; (2) the error is ‘clear or obvious, rather than subject to reasonable dispute’; (3) the error ‘affected the appellant’s substantial rights, which in the ordinary case means’ it ‘affected the outcome of the district court proceedings’; and (4) ‘the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.'” United States v. Marcus, 560 U.S. 258, 262, 130 S. Ct. 2159, 176 L. Ed. 2d 1012 (2010) (quoting Puckett v. United States, 556 U.S. 129, 135, 129 S. Ct. 1423, 173 L. Ed. 2d 266 (2009)).

In New York Telephone, the district court had issued an order authorizing federal agents to install pen registers in two telephones and directed the New York Telephone Company to furnish “all information, facilities and technical assistance” necessary to accomplish the installation. N.Y. Tel. Co., 434 U.S. at 161. The Company argued that neither Fed. R. Crim. P. 41 nor the All Writs Act “provided any basis for such an order.” Id. at 163. The Supreme Court, however, found that this order was “clearly authorized by the All Writs Act” as a necessary and appropriate means of effectuating the installation of the pen registers. Id. at 172.

Here, the Magistrate Judge issued a search warrant for the devices seized at Doe’s residence. When law enforcement could not decrypt the contents of those devices, and Doe refused to comply, the Magistrate Judge issued the Decryption Order pursuant to the All Writs Act. The Decryption Order required Doe to “assist the Government in the execution of the…search warrant” by producing his devices in “a fully unencrypted state.” As was the case in New York Telephone, the Decryption Order here was a necessary and appropriate means of effectuating the original search warrant.

Doe asserts that New York Telephone should not apply because the All Writs Act order in that case compelled a third party to assist in the execution of that warrant, and not the target of the government investigation. The Supreme Court explained, however, that the Act extends to anyone “in a position to frustrate the implementation of a court order or the proper administration of justice” as long as there are “appropriate circumstances” for doing so. Id. at 174. Here, as in New York Telephone: (1) Doe is not “far removed from the underlying controversy;” (2) “compliance with [the Decryption Order] require[s] minimal effort;” and (3) “without [Doe’s] assistance there is no conceivable way in which the [search warrant] authorized by the District Court could [be] successfully accomplished.” Id. at 174-175. Accordingly, the Magistrate Judge did not plainly err in issuing the Decryption Order.

B.

Doe also contends that the Decryption Order violates his Fifth Amendment privilege against self-incrimination and that this challenge is subject to plenary review. Doe raised a Fifth Amendment challenge in his Motion to Quash the Decryption Order. The Magistrate Judge denied that challenge, rejecting the argument that Doe’s Fifth Amendment privilege would be violated. Doe did not file objections to that order, nor did he seek review by way of appeal, writ of mandamus or otherwise, despite the Quashal Denial order informing Doe that failure to file a timely objection may constitute a waiver of appellate rights. Doe also did not renew this self-incrimination claim during the contempt proceedings before the Magistrate Judge and the District Judge. Instead, Doe only reasserted his Fifth Amendment claim in this appeal.

While Doe persists that his challenge to the contempt order entitles him to plenary consideration of the Fifth Amendment issue, we disagree. As noted above, it is generally the case that “a contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed.” Rylander, 460 U.S. at 756 (internal quotation marks and citation omitted).

Even if we could assess the Fifth Amendment decision of the Magistrate Judge, our review would be limited to plain error. See United States v. Schwartz, 446 F.2d 571, 576 (3d Cir. 1971) (applying plain error review to unpreserved claim of violation of privilege against self-incrimination). Doe’s arguments fail under this deferential standard of review.

The Fifth Amendment states that “[n]o person…shall be compelled in any criminal case to be a witness against himself.” U.S. CONST. amend. V. The Fifth Amendment, however, “does not independently proscribe the compelled production of every sort of incriminating evidence but applies only when the accused is compelled to make a Testimonial Communication that is incriminating.” Fisher v. United States, 425 U.S. 391, 408, 96 S. Ct. 1569, 48 L. Ed. 2d 39 (1976). To be testimonial, a communication must either “explicitly or implicitly … relate a factual assertion or disclose information.” Doe v. United States, 487 U.S. 201, 210, 108 S. Ct. 2341, 101 L. Ed. 2d 184 (1988).

The Supreme Court has recognized that in some instances, the production of evidence can implicate the Fifth Amendment. In Fisher, the Court stated that “[t]he act of producing evidence in response to a subpoena … has communicative aspects of its own, wholly aside from the contents of the papers produced.” 425 U.S. at 410. The Court reasoned that compliance with a request for evidence may “tacitly concede[ ] the existence of the documents demanded and their possession and control by the [defendant].” Id. By “producing documents, one acknowledges that the documents exist, admits that the documents are in one’s custody, and concedes that the documents are those that the [Government] requests.” United States v. Chabot, 793 F.3d 338, 342 (3d Cir.), cert. denied, 136 S. Ct. 559, 193 L. Ed. 2d 430 (2015). When the production of evidence does concede the existence, custody, and authenticity of that evidence, the Fifth Amendment privilege against self-incrimination applies because that production constitutes compelled testimony.

In Fisher, however, the Court also articulated the “foregone conclusion” rule, which acts as an exception to the otherwise applicable act-of-production doctrine. Fisher, 425 U.S. at 411. Under this rule, the Fifth Amendment does not protect an act of production when any potentially testimonial component of the act of production—such as the existence, custody, and authenticity of evidence—is a “foregone conclusion” that “adds little or nothing to the sum total of the Government’s information.” Id. For the rule to apply, the Government must be able to “describe with reasonable particularity” the documents or evidence it seeks to compel. Hubbell, 530 U.S. at 30.

Although we have not confronted the Fifth Amendment implications of compelled decryption, the Eleventh Circuit has addressed the issue and found that the privilege against self-incrimination should apply. In that case, a suspect appealed a judgment of contempt entered after he refused to produce the unencrypted contents of his laptop and hard drives. In re Grand Jury Subpoena Duces Tecum Dated Mar. 25, 2011, 670 F.3d 1335, 1337 (11th Cir. 2012). The court found that “(1) [the suspect’s] decryption and production of the contents of the drives would be testimonial, not merely a physical act; and (2) the explicit and implicit factual communications associated with the decryption and production are not foregone conclusions.” Id. at 1346. The court reached this decision after noting that the Government did not show whether any files existed on the hard drives and could not show with any reasonable particularity that the suspect could access the encrypted portions of the drives. Id. Although the court did not require the Government to identify exactly the documents it sought, it did require that, at the very least, the Government be able to demonstrate some knowledge that files do exist on the encrypted devices. Id. at 1348-49.

Despite Doe’s argument to the contrary, the Eleventh Circuit’s reasoning in In re Grand Jury Subpoena does not compel a similar result here. In the Quashal Denial, the Magistrate Judge found that, though the Fifth Amendment may be implicated by Doe’s decryption of the devices, any testimonial aspects of that production were a foregone conclusion. According to the Magistrate Judge, the affidavit supporting the application for the search warrant established that (1) the Government had custody of the devices; (2) prior to the seizure, Doe possessed, accessed, and owned all devices; and (3) there are images on the electronic devices that constitute child pornography. Thus, the Magistrate Judge concluded that the Decryption Order did not violate Doe’s Fifth Amendment privilege against self-incrimination.

Unlike In re Grand Jury Subpoena, the Government has provided evidence to show both that files exist on the encrypted portions of the devices and that Doe can access them. The affidavit supporting the search warrant states that an investigation led to the identification of Doe as a user of an internet file sharing network that was used to access child pornography. When executing a search of Doe’s residence, forensic analysts found the encrypted devices, and Doe does not dispute their existence or his ownership of them. Once the analysts accessed Doe’s Mac Pro Computer, they found one image depicting a pubescent girl in a sexually suggestive position and logs that suggested the user had visited groups with titles common in child exploitation. Doe’s sister then reported that she had witnessed Doe unlock his Mac Pro while connected to the hard drives to show her hundreds of pictures and videos of child pornography. Forensic analysts also found an additional 2,015 videos and photographs in an encrypted application on Doe’s phone, which Doe had opened for the police by entering a password. Based on these facts, the Magistrate Judge found that, for the purposes of the Fifth Amendment, any testimonial component of the production of decrypted devices added little or nothing to the information already obtained by the Government. The Magistrate Judge determined that any testimonial component would be a foregone conclusion. The Magistrate Judge did not commit a clear or obvious error in his application of the foregone conclusion doctrine. In this regard, the Magistrate Judge rested his decision rejecting the Fifth Amendment challenge on factual findings that are amply supported by the record. Accordingly, Doe’s challenges to the Decryption Order and Quashal Denial fail.

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