Compelled Decryption and the Fifth Amendment

Apple’s announcement concerning its new phone that encrypts emails, photos and contacts based on a complex mathematical algorithm utilizing a code created by, and unique to, the phone’s user that Apple says it does not possess has resulted in a cacophony of responses from the privacy and security sectors.¹ While the potential legal combatants survey the political battlefield, a review of recent case law discloses that the courts have tackled with varied results some of the anticipated questions that the new phone raises, including in what circumstances the government may compel a user to decrypt his or her own digital files. This article addresses that question.

Compelled Decryption

In the context of a grand jury investigation, the general rule is that the public has the right to all relevant evidence, “except for those persons protected by a constitutional, common-law, or statutory privilege.”² In any given case, a search warrant based upon probable cause may be obtained and executed on a digital device that contains storage capacity such as a smart phone, cell phone or computer believed to contain contraband and owned or possessed by a target. Once in the government’s safe custody, the device will be downloaded and analyzed by government agents. If the government is unable to decrypt the seized digital files, their next option may be to compel decryption by subpoena on the device’s owner/possessor, and usually followed by a motion to compel if the demand is rejected. In response to compelled decryption, defendants have invoked the Fifth Amendment’s protection against self-incrimination. The Fifth Amendment provides in pertinent part, that “[n]o person shall be compelled in any criminal case to be a witness against himself.”³ This privilege against self-incrimination creates a significant exception to the public’s right to obtain all relevant evidence, but the courts have long recognized that an individual may be forced to produce real or physical evidence that is non-testimonial in nature even if incriminating without violating an individual’s Fifth Amendment privilege. Examples include compelling a defendant to submit to fingerprinting, photographing, measurements, writing and voice exemplars, or participating in a lineup. Nevertheless, the surrender of evidence may itself be privileged if the very act of production is testimonial in nature.⁴ The U.S. Supreme Court has recognized that in certain circumstances, the compelled production of an incriminating document—the so-called “act of production”—may cause the witness to implicitly authenticate and acknowledge the document’s existence and authenticity. Therefore such act is testimonial in nature and privileged, and its use by the government against the witness is barred.⁵