The U.S. Court of Appeals for the Third Circuit held that a court order compelling a child pornography suspect to decrypt his laptop and hard drives did not violate his right against self-incrimination.
The appeals court decision affirmed a civil contempt order against a John Doe defendant, who refused to provide law enforcement with passwords to some of his devices while doing so for others. According to the court’s ruling, law enforcement found thousands of child pornography images on the decrypted devices.
Judge Thomas Vanaskie wrote in the Third Circuit’s opinion that Doe’s Fifth Amendment right against self-incrimination could have been triggered if he handed over the evidence himself, as stated in the 1976 U.S. Supreme Court case Fisher v. United States.
But under the “foregone conclusion” doctrine, the Fifth Amendment didn’t come into play because much of the evidence law enforcement wanted they obtained themselves, according to the decision. That included images found on the devices Doe did provide passwords for, images uncovered through forensic investigations, and through testimony provided by Doe’s sister, who said he showed her hundreds of the images.
“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,” Vanaskie said. “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.”
Keith M. Donoghue, the federal public defender representing Doe, said, “We are disappointed with the ruling and studying the decision to determine what further review it may be appropriate to seek.”
He continued, “The fact remains that the government has not filed charges and our client has now been in custody for 18 months based on his assertion of Fifth Amendment rights against self-incrimination.”
Assistant U.S. Attorney Michelle Rotella said she hopes Doe will now comply with the order to decrypt the remaining equipment.
She added that the foregone conclusion doctrine is rarely seen in such cases.
“Usually we don’t know what’s on the devices, this is really the perfect case for the foregone conclusion doctrine,” she said.
The Electronic Frontier Foundation, a nonprofit organization that advocates for civil liberties in the electronic realm, filed an amicus brief supporting Doe.
An attorney with the foundation, Mark Rumold, said the Third Circuit’s ruling was a lost chance to dive deeper into the interplay between the Constitution and technology.
“The court missed the opportunity to clarify that the Fifth Amendment prohibits the government from forcing someone to disclose a password to a device, whether that’s by announcing it in court or entering it into the device itself,” he said.
Stephen Orlofsky, the appellate practice leader at Blank Rome in Princeton, New Jersey, and a former federal judge, said the issues presented in Doe’s case won’t likely be brought up in civil litigation involving password encryption.
“I think the same issues could come up in a civil cases, but typically they don’t,” said Orlofsky, who is not involved in the Doe case. “Usually when there’s a discovery dispute it’s done on a motion and the court addresses those issues.”
Orlofsky also said that it’s often unwise to take the Fifth in a civil case.
“You always run the risk that if you take the Fifth in a civil dispute the court could give an adverse inference in a jury charge.”
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