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Fifth Amendment protects witness subpoenaed to appear before a grand jury to decrypt contents of his computer hard drive

In U.S. v. John Doe the 11th Circuit came down on the side of a person’s Fifth Amendment right not to incriminate himself. Doe was held in civil contempt for failing to comply with a subpoena duces tecum requiring him to appear before a grand jury and produce the unencrypted contents of Doe’s laptop computers and five external hard drives. Basically the subpoena wanted Doe to decrypt and produce the contents of the computer hard drive and the external hard drives that had been seized during the course of a child pornography investigation. Law enforcement had linked the computer to Doe through IP addresses. Because the forensic examiners were unable to view the encrypted portions of the hard drives, a grand jury subpoena was issued to Doe requiring him to decrypt the contents of the computer hard drives.

When Doe advised the U.S. Attorney that his compliance with the subpoena would violate his Fifth Amendment privilege against self incrimination, the U.S. Attorney applied to the district court for immunity under 18 U.S.C. section 6003 but it limited the immunity to the use of Doe’s act of production of the unencrypted contents of the hard drive. The limited immunity would not extend to the derivative use of the contents of the hard drives as evidence against him in a criminal prosecution. The district court decided that the government’s use of the unencrypted contents in a prosecution against Doe would not constitute derivative use of compelled testimony because the district court believed the act of production did not constitute giving testimony.

The 11th Circuit disagreed, holding that Doe’s decryption and production of the hard drive contents triggered a Fifth Amendment protection because it would be testimonial. It would not be a mere physical act. 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 drive; and of his capability to decrypt the files.

The district court erred in limiting Doe’s immunity to the government’s use of the act of decryption and production and allowing the government derivative use of the evidence. The government cannot go half way with 18 U.S.C. section 6003. The 11th Circuit found no provision that allows the government to selectively pick and choose which portions of the immunity statute to employ. The government attempted to immunize the testimony itself, treating everything else as fair game. It cannot obtain immunity only for the act of production and then seek to introduce the contents of the production because doing so would allow use of evidence derived from the original testimonial statements. The use of his production of the encrypted files violates Kastigar v. United States, 406 U.S. 441(1972). The government cannot obtain immunity for the act of production and then seek to introduce the contents.

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