In In re: Grand Jury Subpoena Duces Tecum dated 3/25/11, No. 11-12268 (Feb. 23, 2012), the Court held that the act of decrypting the contents of a computer hard drive is "testimonial," and therefore triggers the Fifth Amendment protection against self-incrimination.
The Court interpreted Supreme Court precedent to hold that an act of production can be testimonial when the act compels the individual to use "the contents of his own mind," and is not testimonial when an individual is merely compelled to do some physical act, or when the government can show that it already knew the contents of the materials, making any testimonial aspect of the act of production a "foregone conclusion."
The Court held that use of a decryption password to access the contents of a hard drive would be tantamount to a person’s testimony 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. The Court found that this testimony was not a "foregone conclusion," because the government did not know whether any files existed, or whether the person was even capable of accessing the encrypted portion of the drives. "It is not enough for the Government to argue that the encrypted drives are capable of storing vast amounts of date, some of which may be incriminating." The Court distinguished a case which found that the government’s knowledge of a computer file was a "foregone conclusion," pointing out that in that case the government knew the specific file name of the file it sought to decrypt.
The Court further held that the district court did not grant Doe immunity coextensive with the protections of the Fifth Amendment, and therefore could not compel Doe to turn over the encrypted contents. The immunity letter stated that the government could not use the act of production itself, but could use the contents of the encrypted drives against Doe at trial. The Court pointed out that this allowed the government to use the "evidence derived from the original testimonial statement." Thus, the immunity offered was not coextensive with the Fifth Amendment, which extends to information derived from testimony.
The Court therefore reversed the judgment of the district court holding Doe in civil contempt for failing to produce the encrypted contents of hard drives.
