Police seized a computer, hard drive, and iPhone that had been encrypted and password protected. The FBI couldn’t get in. The government applies for an order under the All Writs Act. The court finds that the Fifth Amendment testimonial privilege did not bar an order for the target owner to provide the passwords because it was a “foregone conclusion” that the items are his and he knows the content. In re a Residence in Aptos, Calif., 2018 U.S. Dist. LEXIS 45827 (N.D. Cal. Mar. 20, 2018):
F. Prior Warrant Extensions and Failed FBI Decryption Efforts
The government has requested and received two good-cause warrant extensions in light of the challenge presented by Mr. Spencer’s encryption. Magistrate Judge Laporte granted the first extension on August 11, 2017 and the second on December 11, 2017. (Dkt. Nos. 2, 9, 11.) The government investigation and bypass efforts are memorialized in the declarations of FBI Special Agents Hadley and Marceau.7 (Dkt. No. 12 at 15, 23.)
On October 25, 2017, the government filed the underlying application under the All Writs Act, 28 U.S.C. § 1651, to compel Mr. Spencer to produce in a fully unlocked state the iPhone, Alienware laptop, and Transcend 1TB external hard drive. (Dkt. No. 4.) After several stipulated extensions, Mr. Spencer filed an opposition brief and the government a reply. (Dkt. No. 12 & 14.) The Court heard oral argument on March 1, 2018. (Dkt. No. 18.)
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Discussion
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A. The Fifth Amendment Privilege
The Fifth Amendment provides that “[n]o person … shall be compelled in any criminal case to be a witness against himself.” But “the Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence.” Fisher, 425 U.S. at 408. “[T]he privilege protects a person only against being incriminated by his own compelled testimonial communications.” Id. at 409. It encompasses incriminating answers as well as those “furnish[ing] a link in the chain of evidence needed to prosecute the claimant for a federal crime.” Hoffman v. United States, 341 U.S. 479, 486, 71 S. Ct. 814, 95 L. Ed. 1118 (1951). The privilege may also encompass the very act of production if that act “implicitly communicate[s] statements of fact.” See Fisher, 425 U.S. at 410; United States v. Hubbell, 530 U.S. 27, 36, 120 S. Ct. 2037, 147 L. Ed. 2d 24 (2000). The government concedes here that compelling decryption of the potentially incriminating contents of the at-issue devices would—absent a further showing on its part—implicate the Fifth Amendment. And the government has not sought a grant of immunity for Mr. Spencer. However, as set forth below, “no Fifth Amendment right is touched” because any testimony inhering to Mr. Spencer’s compelled act of decryption is a foregone conclusion. In re Grand Jury Subpoena, Dated Apr. 18, 2003, 383 F.3d 905, 910 (9th Cir. 2004) (“Doe I”) (citing Fisher, 425 U.S. at 411).
B. The Foregone Conclusion Doctrine Applies
The Court turns next to the critical question: whether the testimony inhering to Mr. Spencer’s act of production is a foregone conclusion such that ordering him to decrypt the at-issue devices will not implicate the Fifth Amendment. The foregone conclusion doctrine is an application of the Fifth Amendment “by which the Government can show that no testimony is at issue.” In re Grand Jury Subpoena Duces Tecum Dated Mar. 25, 2011, 670 F.3d 1335, 1343 n.19 (11th Cir. 2012). The Supreme Court articulated the foregone conclusion doctrine in Fisher v. United States, where it upheld the subpoena of potentially incriminating tax documents because the government did not rely on the respondent’s tacit testimony—that is, the “truth-telling” arising from the very act of production—to prove the existence of the documents or that the respondent possessed them. Fisher, 425 U.S. at 410-11. The Court thus held that “[t]he existence and location of the papers [were] a foregone conclusion and the taxpayer add[ed] little or nothing to the sum total of the Government’s information.” Id. (“doubtful that implicitly admitting the existence and possession of the papers [rose] to the level of testimony within the protection of the Fifth Amendment”). Because the implicit testimony was a foregone conclusion, the matter reduced to a question “not of testimony but of surrender.” Id.
The question of the foregone conclusion doctrine’s application in the context of compelled decryption presents a question of first impression to the Ninth Circuit. After considering the parties’ submissions, surveying the relevant legal authority, and having had the benefit of oral argument, the Court finds that the foregone conclusion doctrine applies to each at-issue device.
1. The Court can Order Mr. Spencer to Decrypt Each Device as it is a Foregone Conclusion That he Knows the Encryption Passwords to do so
The Court finds that the testimony inhering to the act of decryption is that Mr. Spencer knows the encryption password. The act of decryption requires nothing more. Accordingly, the Court holds that if the respondent’s knowledge of the relevant encryption passwords is a foregone conclusion, then the Court may compel decryption under the foregone conclusion doctrine. See United States v. Apple MacPro Computer, 851 F.3d 238, 248 n.7 (3d Cir. 2017) (“a very sound argument can be made that the foregone conclusion doctrine properly focuses on whether the Government already knows the testimony … implicit in the act of production. In this case, the fact known to the government that is implicit in the act of providing the password for the devices is “I, John Doe, know the password for these devices”) (emphasis added). Further, “[t]he government bears the burden of proof and must have had the requisite knowledge before issuing the summons or subpoena.” See Bright, 596 F.3d at 692. Finally, the government’s showing of independent knowledge must be made to the standard of “reasonable particularity.” See Doe I, 383 F.3d at 909; United States v. Sideman & Bancroft, LLP, 704 F.3d 1197, 1202 (9th Cir. 2013). The Court finds that the government has shown with reasonable particularity that Mr. Spencer knows the encryption passwords responsive to each at-issue device such that he can produce them in a fully-decrypted state. The Court first considers the at-issue iPhone and its “Secret Folder” application and then turns to the Alienware laptop and the Transcend 1TB external hard drive.
And when he doesn’t comply, then what? Send him to jail where he’ll score another cell phone and watch CP in jail?
