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Suspect Can Be Compelled to Decrypt Devices If Government Proves He Has The Ability To Do So, Court Rules

The right approach, in my view.

Regular readers know my longstanding interest in the correct Fifth Amendment standard for compelling a suspect to decrypt an encrypted device. The Eleventh Circuit adopted one standard in 2012, but I have argued that standard was wrong. Given my interest, I thought I would flag a new decision by District Judge Charles Breyer, United States v. Spencer, that adopts what I have argued is the correct approach. It cites one of my Volokh Conspiracy posts, too, making it a brilliant opinion.

The relevant facts of the case are simple. The government searched Spencer's home with a warrant to find child pornography. They seized several devices, but some were encrypted. The government is now seeking an All Writs Act order compelling Spencer to decrypt three devices -- phone, a laptop, and an external hard drive -- in suport of the warrant. Spencer has responded that he cannot be ordered to decrypt the devices in light of his Fifth Amendment privilege.

The opinion rejecting Spencer's argument is short, and in my view quite good, so I thought I would include the full analysis here. (I have put the two footnotes in brackets, and then for readability added a paragraph break after them. Otherwise this is the entire analysis and discussion.)

The Fifth Amendment to the United States Constitution provides that "No person...shall be Compelled in any criminal case to be a Witness against himself." It applies "only when the accused is compelled to make a Testimonial Communication that is incriminating." Fisher v. United States, 425 U.S. 391, 408 (1976). Accordingly, the Fifth Amendment is not violated whenever the government compels a person to turn over incriminating evidence. Id. at 409. Instead, it is only implicated when the act of production itself is both "testimonial" and "incriminating." Id. at 410.

The act of production is neither testimonial nor incriminating when the concession implied by the act "adds little or nothing to the sum total of the Government's information by conceding that he in fact has the [evidence]"—that is, where the information conveyed by the act of production is a "foregone conclusion." Id. at 411. It is important to stress the limited scope of the "foregone conclusion" rule. It only applies where the testimony at issue is an implied statement inhering in the act of production itself. See United States v. Apple MacPro Computer, 851 F.3d 238, 247 (3d Cir. 2017). Otherwise, the government cannot compel a self-incriminating statement, regardless of whether the contents of the statement are a "foregone conclusion." See Fisher, 425 U.S. at 429 (Brennan, J., concurring) (whether testimony is considered incriminating under the Fifth Amendment does not "turn on the strength of the Government's case").

For instance, the government could not compel Spencer to state the password itself, whether orally or in writing. [FN1: See Doe v. United States, 487 U.S. 201, 210 n.9 (1988) (stating in dicta that compelling someone to reveal the combination to his wall safe is testimonial for purposes of the Fifth Amendment); Wayne R. LaFave et al., 3 Criminal Procedure § 8.13(a) (4th ed. 2017) ("[R]equiring the subpoenaed party to reveal a passcode that would allow [the government] to perform the decryption...would require a testimonial communication standing apart from the act of production, and therefore make unavailable the foregone conclusion doctrine."); accord, United States v. Kirschner, 823 F. Supp. 2d 665, 668-69 (E.D. Mich. 2010); In re Boucher, No. 2:06-mj-91, 2007 WL 4246473, at *3-4 (D. Vt. Nov. 29, 2007), overruled in part on other grounds, No. 2:06-mj-91, 2009 WL 424718 (D. Vt. Feb. 19, 2009); Com. Of Virginia v. Baust, No. CR14-1439, 2014 WL 6709960, at *3.]

But the government is not seeking the actual passcode. Rather, it seeks the decrypted devices. Spencer argues that production of the devices would not fall within the act-of-production doctrine because producing the devices would require him to enter the decryption password. In other words, Spencer argues that because the government cannot compel him to state the passwords to the devices, it cannot compel him to decrypt the devices using the passwords, either. This argument has some superficial appeal, and finds support in a dissent by Justice John Paul Stevens, who once contended that a defendant could "not...be compelled to reveal the combination to his wall safe" either "by word or deed." Doe, 487 U.S. at 219 (Stevens, J., dissenting) (emphasis added). While the analogy is not perfect, we may assume that storing evidence in encrypted devices is equivalent to securing items in a safe protected by a combination, and that Justice Stevens' reasoning applies equally to the situation at hand. See In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, 670 F.3d 1335, 1346 (11th Cir. 2012).

But a rule that the government can never compel decryption of a password-protected device would lead to absurd results. Whether a defendant would be required to produce a decrypted drive would hinge on whether he protected that drive using a fingerprint key or a password composed of symbols. See New York v. Quarles, 467 U.S. 649, 671 (1984). Similarly, accepting the analogy to the combination-protected safe, whether a person who receives a subpoena for documents may invoke the Fifth Amendment would hinge on whether he kept the documents at issue in a combination safe or a key safe. See Doe, 487 U.S. at 210 n.9. But this should make no difference, because opening the safe does not require producing the combination to the government. Whether turning over material, either in the form of documents or bits, implicates the Fifth Amendment should not turn on the manner in which the defendant stores the material.

So: the government's request for the decrypted devices requires an act of production. Nevertheless, this act may represent incriminating testimony within the meaning of the Fifth Amendment because it would amount to a representation that Spencer has the ability to decrypt the devices. See Fisher, 425 U.S. at 410. Such a statement would potentially be incriminating because having that ability makes it more likely that Spencer encrypted the devices, which in turn makes it more likely that he himself put the sought-after material on the devices.

The next question is whether the foregone conclusion rule applies. There is some confusion in the case law regarding what exactly the relevant "foregone conclusion" must be where the government seeks decryption of hard drives. The Eleventh Circuit has held that the government must show that it is a foregone conclusion not only that the defendant has the ability to decrypt the device(s), but also that certain files are on the device(s). In re Grand Jury Subpoena, 670 F.3d at 1347. The In re Grand Jury Subpoena court denied the government's attempt to compel the defendant to decrypt the device at issue in that case because it " 'ha[d] not shown that it had any prior knowledge of either the existence or the whereabouts of the [files]' " on the device. Id. (alterations in original).

The Eleventh Circuit was relying on precedent in which the government requested specific documents from a defendant pursuant to subpoena. See Fisher, 425 U.S. at 410. In Fisher, "Compliance with the subpoena tacitly concede[d] the existence of the papers demanded and their possession or control" by the defendant. Id. Not so in cases like the one at hand, in which the government seeks entire hard drives. Turning over the decrypted devices would not be tantamount to an admission that specific files, or any files for that matter, are stored on the devices, because the government has not asked for any specific files. Accordingly, the government need only show it is a foregone conclusion that Spencer has the ability to decrypt the devices. [FN2: 2 See Orin Kerr, Fifth Amendment protects passcode on smartphones, court holds, Wash. Post (Sept. 24, 2015), https://www.washingtonpost.com/news/volokh- conspiracy/wp/2015/09/24/fifth-amendment-protects-passcode-on-smartphones-court- holds/?noredirect=on&utm_term=.92228f257a5d ("The details of what records are on the phone should be irrelevant to whether the foregone conclusion doctrine applies because access to the phone is independent of what records are stored inside it. Handing over the passcode has the same testimonial aspect regardless of what is on the phone."); Apple MacPro Computer, 851 F.3d at 248 n.7; In re Search of a Residence in Aptos, Calif. 95003, 2018 WL 1400401, at *6 n.10.]

That the government may have access to more materials where it seeks a hard drive through a search warrant than it would have had if it sought specific files through subpoena is simply a matter of the legal tool the government uses to seek access. To the extent Spencer contends that the government has not adequately identified the files it seeks, that is an issue properly raised under the Fourth Amendment, not the Fifth.

The only remaining question insofar as the applicable legal framework goes is what standard the Court must apply in evaluating whether Spencer's knowledge of the passwords is a "foregone conclusion." In the context of requests for specific documents, the government is required to establish independent knowledge "of the existence, possession, and authenticity of subpoenaed documents with 'reasonable particularity' before the communication inherent in the act of production can be considered a foregone conclusion." United States v. Hubbell, 167 F.3d 552, 579 (D.C. Cir. 1999), aff'd, 530 U.S. 27 (2000). The "reasonable particularity" standard appears to have been derived from the standard courts use to evaluate whether a warrant is sufficiently specific under the Fourth Amendment. See Stanford v. State of Tex., 379 U.S. 476, 485 (1965).

Courts have continued to apply that standard to cases involving compelled decryption under the Fifth Amendment. See, e.g., In re Grand Jury Subpoena, 670 F.3d at 1349; Apple MacPro Computer, 851 F.3d at 247. But it is nonsensical to ask whether the government has established with "reasonable particularity" that the defendant is able to decrypt a device. While physical evidence may be described with more or less specificity with respect to both appearance and location, a defendant's ability to decrypt is not subject to the same sliding scale. He is either able to do so, or he is not. Accordingly, the reasonable particularity standard cannot apply to a defendant's ability to decrypt a device. (In any event, "reasonable particularity" is not really an evidentiary standard at all. It is better viewed as a substantive standard that helps to ensure that any testimony at issue really is a "foregone conclusion.")

The appropriate standard is instead clear and convincing evidence. This places a high burden on the government to demonstrate that the defendant's ability to decrypt the device at issue is a foregone conclusion. But a high burden is appropriate given that the "foregone conclusion" rule is an exception to the Fifth Amendment's otherwise jealous protection of the privilege against giving self-incriminating testimony. See Fisher, 425 U.S. at 429 (Brennan, J., concurring).

The question, accordingly, is whether the government has shown by clear and convincing evidence that Spencer's ability to decrypt the three devices is a foregone conclusion. It has. All three devices were found in Spencer's residence. Spencer has conceded that he owns the phone and laptop, and has provided the login passwords to both. Moreover, he has conceded that he purchased and encrypted an external hard drive matching the description of the one found by the government. This is sufficient for the government to meet its evidentiary burden. The government may therefore compel Spencer to decrypt the devices. Once Spencer decrypts the devices, however, the government may not make direct use of the evidence that he has done so. See Robert P. Mosteller, Simplifying Subpoena Law: Taking the Fifth Amendment Seriously, 73 Va. L. Rev. 1, 110 n.108 (1987). If it really is a foregone conclusion that he has the ability to do so, such that his decryption of the device is not testimonial, then the government of course should have no use for evidence of the act of production itself.

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  • Procyon Mustelid||

    This may be correct, but it is not satisfying. I would prefer tbe 5th Amendment be worded such that Fisher were self-evidently wrong. Something along the lines of a blanket prohibition on requiring the accused (or not-yet-accused) to do anything, in any fashion, to assist the prosecution (or investigation).

  • PoxOnBothYourHouses||

    The majesty and fearfulness of the law stems from the fact that the most clever writers make the best cases for the rulings they wanted to make in the first place. Then lesser lights apply cleverness to the previous writings and stretch them further. And so on. Soon they can actually tell us how many angels can dance on the head of a pin ... and who's to dispute them?

  • Rossami||

    Agreed. This decision may be right as a statement of current law but it is normatively very wrong. This crippled interpretation of "be a Witness against himself" as merely applying to "testimony" is an erosion of the rights the Founders established.

  • TheAmazingEmu||

    I think the simpler solution would be Kastigar Immunity for any testimonial aspect of production. Basically, make it so the act of production isn't any more incriminating than if they were to gain access through some other hypothetical source.

  • IJustWorkHere||

    What's this about a Fifth Amendment "privilege"?

  • TwelveInchPianist||

    " the government ... seeks the decrypted devices."

    So it's an easy case. The "decrypted devices" don't exist, so Spencer can't be required to turn them over. I don't know why judges insist on getting such easy questions wrong.

  • Orin Kerr||

    Exact language of the orders vary, but the order typically is to produce the decrypted devices when given the encrypted devices, which the person who knows the password can do. So the issue is whether the decrypted device can be produced, not whether it exists at the time.

    Which is to say, maybe they insist on getting such easy questions "wrong" because litigants and judges all seem to think the legal question is different from what you think it is.

  • Dilan Esper||

    I have no expertise on criminal procedure, but the correct rule from a policy standpoint is almost certainly that the government should be out of luck.

    There's no reason why the government should automatically obtain access to people's secrets. The equibrium has always been that if the government agents couldn't locate the evidence themselves, the suspect has no obligation to assist them. And that is a good rule.

    Governments employ skilled codebreakers. Why make it easy for them to access secrets. If you hid the murder weapon, the courts can't force you to tell the police where it is.

  • Orin Kerr||

    I don't think it's exactly "automatic" access if it requires (a) a warrant based on probable cause, (b) identification of a person who knows the password, (c) a court order that the person who knows the password can be compelled to enter in the password, (d) compliance with the court order, rather than a decision to disobey it, and also (e) subsequent government forensic analysis of the data, which may or may not discover the person's secrets.

  • MatthewSlyfield||

    (b) is impossible unless the police already know the password.

    I haven't used that device in years, because I forgot the password.

  • Prester John||

    C, D, and E are unacceptable (and quite humorous) responses to someone complaining of a violation of rights and that policy gives the government too much power.

    "Yes, this may seem like an unconstitutional overreach, but don't worry, we have an order that says it isn't, we might not find anything anyway, and you always have the option of objecting on principle and being imprisoned until you confess!"

  • ||

    Exactly this. The only correct ruling is that the government cannot force or compel people to decrypt devices. Sorry, but the government is out of luck.

  • Krayt||

    It is a good point -- the 4th was designed to stop the King from arbitrarily filching through opponents' stuff looking for something to tag them with, hence the warrant requirement.

    But is that enough? We have a unique moment in history to shut down governments aro7nd the world from cracking open communications, which is aiding dictators everywhere to keep that boot stepping on a human face.

    Is catching a few criminals worth not pursuing tech that thwarts the oppressors of billions?

    Yay, American prosecutor. You have another notch in your belt, which represents one crook and millions of oppressed.

  • Dilan Esper||

    A warrant is a device for allowing the government to search something. That's different from forcing a suspect to help the government comvict her.

    Again, there may be a search warrant for the murder weapon, based on probable cause. But if the government can't find it, they can't get a court order forcing you to tell them where it is.

    Search warrants are orthogonal to the civil liberties problem here, which is the government, either uninterested in spending the necessary effort and money or incompetent at getting into the device, wants a private citizen to assist in his own prosecution. The answer should always be "no". This is the state's burden in a free society.

  • TwelveInchPianist||

    "A warrant is a device for allowing the government to search something. That's different from forcing a suspect to help the government convict her."

    Well, the government can sometimes force the defendant to help convict her. They can force her to produce a handwriting sample, for example. But that is different than ordering her to tell them information that they can use to convict her, even if the way that that information is used is obscured by technology.

  • TwelveInchPianist||

    "order typically is to produce the decrypted devices when given the encrypted devices, which the person who knows the password can do."

    Sure. Think of all the non-existent evidence that can be produced with the aid of the knowledge of the defendant. This is why your claim that the government doesn't want to know the passcode is incorrect. The government already has all the evidence, it just needs a little more information to prove its case. The decrpypted device is the information on the device, plus a little bit more.

    This is what makes producing a decrypted device fundamentally different than ordering the defendant to open a safe and produce evidence that already exists within the safe.

  • TwelveInchPianist||

    I mean, come on. The initial state is that the evidence doesn't exist. Not that evidence exists somewhere and has to be produced by the defendant and has to be produced, but that it doesn't exist.

    So we add a little knowledge from the suspect and stir, and voila, the evidence exists.

    This is distinguishable both from forcing the defendant to produce evidence that already exists, and forcing the suspect to create evidence, like a handwriting sample, without supplying any additional information.

  • Lee Moore||

    Prof Kerr : "So the issue is whether the decrypted device can be produced, not whether it exists at the time."

    So this is really about compelling someone to create something that doesn't currently exist. Is there any kind of limit to how much work the government is entitled to get you to do ? Or any question of whether they have to pay you to do it ? So in old tech speak, if the government seizes a coded document, and they have good reason to believe that Professor Turing will be able to decode it, with a couple of years work, can they make him decode it ? Or if there's a bloodstain that can be examined with a new microscope that Professor van Leeuwenhoek has designed, but hasn't built yet, can they make him build it ?

    I noticed that the 4th Amendment was mentioned in passing, which is nice, because it occurred to me too.

    "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized"

    How can a Warrant be issued to seize something that doesn't exist ?

  • TwelveInchPianist||

    Child pornography is an exception to the first amendment where the government can make it a crime to possess certain information (the "bits" referred to in the opinion). Hard drives containing encrypted versions of illegal images store almost, but not all, of the banned information. The rest of the information is in the defendant's brain, and in order to prove that the defendant possessed the banned images, the government must force the defendant to divulge that information. Pretending that this in not what is happening is sophistry.

  • PoxOnBothYourHouses||

    12inch: "Child pornography is an exception to the first amendment"

    First they came for the child pornographers and I did not speak out, because they are despicable.
    Then they came for the financial crooks, and I did not speak out because I am not a crook.
    Then they came for those on the political outs, and I did not speak out because I was in the right party.
    Then they came for those who were on the wrong side of history, and I said nothing ... because I grew fearful.
    And then they came for me, and there was no one left to speak for me.

  • TwelveInchPianist||

    I'm not sure I get this comment. Child porn is a recognized exception to the 1A.

  • loveconstitution1789||

    How are pictures and videos that parents can take of their kids criminal for some and not criminal for others?

    It cannot be an element of a crime because some parents are charged.

    It cannot be an element that the defendant had sex since those images and video sometimes contain others engaging in that behavior.

    it cannot be an element that the government gets to decide what it is and what isn't child porn on the fly because that's too vague of a law.

    End the exceptions to the 1A and go after people that actually hurt kids.

  • Noscitur a sociis||

    it cannot be an element that the government gets to decide what it is and what isn't child porn on the fly because that's too vague of a law.

    That seems fair. That's probably why every American jurisdiction that criminalizes the possession of child pornography has enacted a definition of what it is. The federal definition, for instance, can be found at 18 USC 2256(8).

  • loveconstitution1789||

    Seems to be a vague definition if innocent parents are being prosecuted for innocent parental behavior.

  • David Nieporent||

    Hard drives containing encrypted versions of illegal images store almost, but not all, of the banned information. The rest of the information is in the defendant's brain, and in order to prove that the defendant possessed the banned images, the government must force the defendant to divulge that information. Pretending that this in not what is happening is sophistry.

    This is the computer scientist's version of you-can't-make-me-pay-taxes- because-you-capitalized-my-name sovereign citizen argument. The notion that by the right incantation of jargon one can evade a court order. But gold fringe on a flag doesn't make it an admiralty court, and the fact that encryption in a technical sense works differently than a physical key doesn't mean that it's legally relevant.

  • Brett Bellmore||

    It's a common problem for people who think logically, but aren't cynical enough: They think that if they can prove through the formal rules that they win, they get to win.

    They forget the informal rule that overrides the formal rules: The government wins.

  • Slocum||

    As I pointed out below, if the target of investigation uses the right technology, the government won't win.

    Court: De-encrypt this.
    Target: OK, here you go.
    Court: But we suspect there's even more encrypted stuff on there -- give us the other password that will unlock the stuff that might or might not be there.
    Target: Nope, that's all there is, I don't have another password (might be lying, but there's no way to prove it).

  • Brett Bellmore||

    The challenging part is that the software that does this has to be located in the partition to be obscured, and leave no traces anywhere else. And render that partition not merely impenetrable, but innocent looking. Labeled as dead sectors, perhaps.

    Otherwise, they may not be able to prove what was in it, but they might be able to prove that you're hiding something.

  • Slocum||

    Read the link below -- the developers of TrueCrypt / VeraCrypt took those issues into account (it wouldn't be much use if they hadn't)

  • TwelveInchPianist||

    "This is the computer scientist's version of..."

    You've claimed this before. I don't think so. But in case you're correct, every time this issue comes up, I make an analogy to a paper document with cipher text written on it, and ask if a defendant can be ordered to produce a deciphered version of the document.

    So far, no one has been willing to defend the government wrt the paper hypo, nor has anyone been able to explain why it is legally different when the data is stored on a hard drive instead of paper, and a computer is doing the enciphering.

    It would be great if some smart lawyer on this site could do either.

  • TwelveInchPianist||

    "This is the computer scientist's version of you-can't-make-me-pay-taxes- because-you-capitalized-my-name sovereign citizen argument."

    Or, to take a different approach, maybe my argument isn't clear. Prof. Kerr's argument rests on the claim that the government is not seeking the actual passcode. But the government does, in fact, need the actual passcode, even if the manner that they use it to convict the defendant is obscured by the technology.

  • TwelveInchPianist||

    " The notion that by the right incantation of jargon one can evade a court order..."

    Sort of like when a person is acquitted of crime A, but convicted of crime B, the judge can sentence for crime A as long as he says that he is really giving him a longer sentence for crime B because he did crime A. That must be the judges' version of the fringe flag theory.

  • IJustWorkHere||

    I'd like to address the key vs. code comparison, too. In a profession with mostly-arbitrary concepts like probable cause, it seems that the means of storage do matter. I doubt there's a requirement for an understanding of the mechanics of different types of safes, but an argument can be made that the means of storage do matter. In a practical sense, the means of storage matter because a cop who has seen the right youtube videos would briskly reach for a circular saw if the safe were thin-walled (looking at you SentrySafe), but would take more time to open a Browning Safe. The means of entering the safe could affect the officer's investigation, including the speed with which evidence is collected and the likelihood of destroying property and evidence while attempting to collect evidence.

    On a more practical subject, it seems to me that someone attempting to protect criminal activity with encryption could utilize an encryption tool that prevents the drive from ever being encrypted when the owner passes a false pass code. In other words, "password1" decrypts the machine" whereas "password01" voids "password1" and does not decrypt the machine.

  • ||

    someone attempting to protect criminal activity with encryption could utilize an encryption tool that prevents the drive from ever being encrypted when the owner passes a false pass code. In other words, "password1" decrypts the machine" whereas "password01" voids "password1" and does not decrypt the machine.

    This sounds good as far as denying the govt the contents of the encrypted devices as a matter of practicality, but

    1) how could the govt discriminate between Ann who refuses to divulge -- or use -- the working decryption password, and Bob who used this proposed stratagem?

    2) IANAL but Bob might be charged with in tampering with evidence or somesuch.

  • PoxOnBothYourHouses||

    There are also two-part pass codes that require someone else (preferably at a distant location, out-of-country) to complete the code.

    And encryption that will open a portion of the encrypted material while obscuring that any other material exists.

    Or one can have a pass code that is long and involved such that one can't use it without having it written out in front of her. In that case, I imagine (I certainly don't know) that one could then hide the printed sheet (or the file, or whatever) and be as free as the person who has hidden a murder weapon -- the caveat being how one could convince the court that she truly does not know the exact pass code

    (I don't actually know most of my pass words and use a multi-step process to access them. It drives my wife a little mad, because she thinks I'm a little mad, and she may be right)

  • loveconstitution1789||

    Plausible deniability is used by the government so fuck them, I will use it too.

  • California Right To Carry||

    Just out of curiosity, what can the government do to force him to reveal the password(s)? After all, he's already in jail.

  • loveconstitution1789||

    He is in jail pending trial. If they "convicted" him without a trial of obstructing justice or contempt of court, he can get a year in jail for each misdemeanor and "x" years for felony obstruction with the feds.

    He shouldn't play their game and just say that he cannot remember after all this time in jail.

  • loveconstitution1789||

    These corrupt judges have ignored the constitution for too long. Don't even play their game.

    Simply say that since you have been arrested, you have no idea what the password could possibly be.

    Demand a speedy trial and go home after you are acquitted since they have zero evidence.

  • Orin Kerr||

    In re Weiss, 703 F.2d 653, 662–663 (2d Cir. 1983):

    *******
    [D]isclaimers of knowledge or memory, ha[ve also been dealt with as contemptuous conduct, warranting sanctions that were coercive, punitive, or both. It has long been the practice of courts viewing such testimony as false and intentionally evasive, and as a sham or subterfuge that purposely avoids giving responsive answers, to ignore the form of the response and treat the witness as having refused to answer.
    ********

  • LawDog||

    Except, of course, when you happen to be the Attorney General.

  • ||

    Which is also wrong of course.

  • Greg_Cherryson||

    That whole foregone conclusion doctrine is utterly nonsensical and the only rationale for its development is the unbridled desire of courts to make life easier for the government.

    "The act of production is neither testimonial nor incriminating when the concession implied by the act "adds little or nothing to the sum total of the Government's information(...)"

    If the concession implied by the act indeed adds little to nothing to the sum total of the Government's information, then such an act is unnecessary, and the (just admitted) negligible information gain cannot supersede the violation of the defendant's previously recognized right to refuse the production of his "private papers" (Entick v. Carrington, then Boyd v. United States).

    You can't have the cake and eat eat too, i.e. benefit from a substantial information gain, while claiming that the gain is negligible and the conclusion "foregone".

  • TheAmazingEmu||

    You're confusing two things. They do gain a lot from viewing the encrypted contents, but those contents are not testimonial. They supposedly don't gain much from the admission that you know the password (implicitly given by typing in the password). I tend to agree that the whole "foregone conclusion" analysis has muddied things that could have been solved more easily with a limited purpose Kastigar Immunity. Basically, they won't introduce at all in trial that defendant typed in the password.

  • Negi||

    What if the defendant devises a scheme (using a TPM for example) that would destroy the encryption key upon entry of a particular incorrect user password?

    Could his destruction, effectively, of the data (by permanent destruction of the full key) be prosecuted as obstruction of justice in the author's opinion?

  • Negi||

    To clarify, this could be done with a smartcard with a programmable killcode today for 50 dollars.

  • Kary Love||

    1. Star Chamber: where the 5th Amendment came from: from 1487-1641. These "courts" utilized the inquisitorial method of truth-seeking as opposed to the prosecutorial, meaning that prosecutors did not bear the burden of proving a case, but that sufficient "proof" came from browbeating confessions out of the accused.
    2. The right to be free from self-incrimination was established in nine state constitutions and was a tenet of the common law throughout most of the colonies before it appeared in the U.S. Constitution.
    3. USA supposedly rejected torture based criminal proceedings, presumed innocence and required Government to prove its own case.
    4. The devolution back to the Star Chamber is proceeding apace. Holding presumed innocent persons in jail while extorting their cooperation in convicting them can rise to torture.
    5. Justification for "rolling back" hard won rights can always be found, or created, by "the latest crisis du jour."
    6. Exceptions to rights grow to hollow the right to the point of non-existence. What the appellate courts say in the ivory tower are applied by lower tribunals in numerous cases where no appeal will result much more broadly than the appellate ruling appears to allow. Prudence dictates caution to avoid erosion of liberty.

  • Slocum||

    In the future, people who wish to keep some of their information truly secure from the government's eyes are going to need to get a little more sophisticated. This approach should get around the 'foregone conclusion' problem:

    https://www.veracrypt.fr/en/VeraCrypt Hidden Operating System.html

    (The encrypted device contains one 'ordinary' encrypted partition and may -- or may not -- contain a second 'super secret' partition. Even the existence of a possible second secret partition can only be detected if the password for it is provided. Without the password, the authorities would not be able to prove that there was extra information to be decrypted).

  • Prester John||

    This conclusion rests on a number of absurd premises.

    The idea that being compelled to give information isn't actually being compelled to be a witness.

    The idea that an act can be so meaningless that it's not a violation of rights to force someone to do it, yet it can simultaneously be so critical that the government must have the power to force someone to do it or be convicted of a perpetual ongoing crime.

    The idea that 'the way of storing data is just a technicality.' You've made all these arguments on technicalities but now that the technicality lies against you it's meaningless?

    What jests.

  • bernard11||

    For instance, the government could not compel Spencer to state the password itself, whether orally or in writing [FN1: ....("[R]equiring the subpoenaed party to reveal a passcode that would allow [the government] to perform the decryption...would require a testimonial communication standing apart from the act of production, and therefore make unavailable the foregone conclusion doctrine."

    This looks like a silly distinction to me. You can be forced to reveal it one way, but not another?

    Also, suppose the device required a spoken password - "Open sesame" comes to mind, or "Alexa, my name is Rumpelstilskin. Decrypt the disk." Now what?

  • TheAmazingEmu||

    This is the only part I don't entirely agree with. It's a limitation on the Foregone Conclusion doctrine that seems to have some basis in precedent, but it also seems to me that the logic of the doctrine is, if it's a foregone conclusion, it isn't any more incriminating than if he hadn't said anything. Having him speak the password doesn't seem any different to me. Maybe it's just a belief that symbolic testimony is less protected, I don't know.

  • LawDog||

    "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..." The rest of our "rights" are gone; why should this one be any different?

  • TheAmazingEmu||

    That's not the right one. The relevant one at issue here is "No person ... shall be compelled in any criminal case to be a witness against himself"

  • Cosmo Man||

    I am not an attorney. Just a guy who has an interest in the Bill of Rights. One thing I have learned in my years of reading VC is that Mr. Kerr has never met an abuse of the 4th Amendment that he doesn't like.

  • Per Son||

    Cosmo Man,

    You stated that "Mr. Kerr has never met an abuse of the 4th Amendment that he doesn't like," but that is a non sequiter. This case involved a 5th Amendment Claim, and even the Court noted that "[t]o the extent Spencer contends that the government has not adequately identified the files it seeks, that is an issue properly raised under the Fourth Amendment, not the Fifth."

  • Orin Kerr||

    Otter:Germans?
    Boon: Forget it, he's rolling

  • Lastseer||

    We're not compelling you to tell us where you buried the body. We're just compelling you to produce the dead body.

  • MatthewSlyfield||

    There are lots of dead bodies out there, none of them belong to me. Which one do you want?

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