Third Circuit doesn't resolve standard for forced decryption under the Fifth Amendment

I have blogged a few times about a pending 3rd Circuit case on the Fifth Amendment standard for compelling the decryption of a hard drive. As I explained, the case presents an opportunity to weigh in on the 11th Circuit's standard in a similar case that I think was erroneous. The 3rd Circuit handed down its decision this morning, United States v. Apple Mac Pro Computer. The court ruled for the government without resolving which standard applies. In a footnote, however, the court hinted that it disagreed with the 11th Circuit and would have adopted the standard that I think is right if it had to choose. It's just dicta, but it's pretty strongly worded dicta.

I explained the legal issue in glorious detail in my prior post, but here's a quick overview. If the "foregone conclusion" doctrine applies, the Fifth Amendment privilege against self-incrimination doesn't bar the act of compelling entering in a password. The question is: What does the government need to show to establish a foregone conclusion? The 11th Circuit had held in its prior case that the government needs to show that the government knows with reasonable particularity what files are on the encrypted device. In my view, that's wrong. The foregone conclusion doctrine applies if the government can show that it knows that the subject knows the passcode.

The 3rd Circuit held that the Fifth Amendment issue was not preserved below, but that even if it should be reached it would not be "plain error" to say that there was no Fifth Amendment privilege:

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 11th Circuit's ruling was distinguishable on its facts:

Unlike [the 11th Circuit's case], the Government has provided evidence to show both that files exist on the encrypted portions of the devices and that Doe can access them. . . . 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.

The 3rd Circuit then dropped this very intriguing footnote, with a paragraph break added by me:

It is important to note that we are not concluding that the Government's knowledge of the content of the devices is necessarily the correct focus of the "foregone conclusion" inquiry in the context of a compelled decryption order. Instead, a very sound argument can be made that the foregone conclusion doctrine properly focuses on whether the Government already knows the testimony that is 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." Based upon the testimony presented at the contempt proceeding, that fact is a foregone conclusion.

However, because our review is limited to plain error, and no plain error was committed by the District Court in finding
that the Government established that the contents of the encrypted hard drives are known to it, we need not decide here that the inquiry can be limited to the question of whether Doe's knowledge of the password itself is sufficient to support application of the foregone conclusion doctrine.

There's a lot in that footnote that the government can use in future cases. It's dicta, but it's "very strong" dicta. The issue will live for another day without a circuit split. But given that I think the footnote is correct, I hope it will be followed in future cases.