Roger Ford
The Eleventh Circuit held Thursday, in a case with the inauspicious name of In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011 (pdf link), that a suspect can invoke the Fifth Amendment and refuse to decrypt a hard drive’s contents in response to a subpoena.
The Fifth Amendment protects one from being compelled to provide self-incriminating testimony. The government argued (and has argued in several other cases) that the Fifth Amendment does not apply to decryption orders because complying with such orders does not provide new “testimony”; it merely provides files that previously exist on the hard drive. The court agreed that an order to provide preexisting files would not be an order to provide “testimony,” and so would not run afoul of the Fifth Amendment.
The court concluded, however, that this was not enough, because the act of decrypting the files could itself provide incriminating testimony:
Whether the drives’ contents are testimonial, however, is not the issue. What is at issue is whether the act of production may have some testimonial quality sufficient to trigger Fifth Amendment protection when the production explicitly or implicitly conveys some statement of fact. See Fisher v. United States, 425 U.S. 391, 410, 96 S. Ct. 1569, 1581, 48 L. Ed. 2d 39 (1976) (“The act of producing evidence in response to a subpoena nevertheless has communicative aspects of its own, wholly aside from the contents of the papers produced.”).
Accordingly, the court concluded, “the decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files.” Since these facts would be established through new, compelled actions, not previously existing documents, forcing him to confirm them would, for all intents and purposes, compel him to provide incriminating testimony.