In Re: Grand Jury Subpoena Duces Tecum Dated March 25, 2011: United States v. Doe, Nos. 11-12268 & 11-15421 (11th Cir. Feb. 23, 2012) (published).
Panel of Judges Tjoflat, Martin, and Hill.
CP case.
Appeal of a civil contempt order. D got subpoena to appear before grand jury and produce unencrypted contents of hard drives. D told US Attorney that he would invoke his Fifth Amendment privilege against self-incrimination and refuse to comply with the subpoena. US Attorney asked the district court for an order granting D immunity and requiring him to respond to the subpoena.
The immunity would extend only to D's production of the unencrypted contents---not the gov's derivative use of the contents. The district court issued the order. D appeared before the grand jury and refused to decrypt the hard drives. D invoked his Fifth Amendment rights (D was w/o counsel at these times). D also claimed he could not decrypt the material. The district court adjudged the D in contempt and incarcerated him.
Authorities had gotten the hard drives after investigating CP allegations and tracing them back to the D and a hotel room in California. Law enforcement got a warrant and seized all digital media and a number of encryption devices/codes to access the media. Forensic examiners, however, were unable to view some of the material, which led to the proceedings at issue.
D feared that his decryption of the materials would show he, and not another person, had placed the materials on the digital media and encrypted the materials.
Conclusions:
* D's decryption and production of the hard drives' contents would trigger Fifth Amendment protection b/c it would be testimonial; such protection would extend to the gov's use of the materials.
* Material that is a link in the chain that leads to incriminating evidence is enough to invoke the Fifth Amendment.
* The files themselves are not testimonial. But the actual contents of the drives were not the issue. The issue was the act of production when that production explicitly or implicitly conveyed a statement of fact.
* "Foregone conclusion" doctrine: the existence and location of papers are foregone conclusions, so the possessor of the documents adds little by conceding that he/she has the papers. Not testimony then---just surrender---so no constitutional rights involved. This doctrine does not apply when the gov does not know of the existence of documents beyond suspicion.
* Test: "whether the government compels the individual to use 'the contents of his own mind' to explicitly or implicitly communicate some statement of fact."
* An act of production is not testimonial if 1) the gov merely compels some physical act (no use of the mind), or 2) if the "foregone conclusion" doctrine applies b/c the gov "can show with 'reasonable particularity' that, at the time it sought to compel the act of production, it already knew of the materials."
* Ct held that the act of decryption and production of the contents of the hard drives would implicate the Fifth Amendment. The act would be testimonial---not merely physical and the factual communications associated with the decryption/production were not foregone conclusions.
* Decryption requires use of the mind: tantamount to testimony that D knew of the materials, possessed/accessed them, and could decrypt them.
* No "foregone conclusion" here b/c gov could not show it knew whether any files actually existed or the location of such files. Gov could not even show it knew D could access the encrypted portions of the drives.
* Encryption alone does not mean a person is trying to hide something.
* Immunity granted here insufficient. "Use and derivative-use immunity establishes the critical threshold to overcome an individual's invocation of the Fifth Amendment privilege against self-incrimination." Gov did not give such immunity here. So D could not be compelled to decrypt the drives.
* D "properly invoked the Fifth Amendment privilege." His refusal to decrypt the hard drives w/o sufficient immunity was justified. District ct erred in adjudging him in civil contempt. Dist ct's judgment reversed.
