Order to Decrypt Digital Devices: A Violation of the Fifth Amendment?

In United States v. Apple Macpro Computer, No. 15-3537 (Third Cir. March 20), the U.S. Court of Appeals for the Third Circuit held that the district court properly found appellant John Doe in contempt of court for failing to comply with an order under the All Writs Act, 28 U.S.C. Section 1651, which required him to produce—in a fully unencrypted state—several devices that had been properly seized, but which were in an encrypted state. The court rejected the appellant’s argument that his decrypting of the devices would force him to violate his Fifth Amendment right against self-incrimination. The court’s proper ruling is an important one, as encryption of devices is prevalent in the digital world, and decryption by the target is more and more the best and least costly way for the government to access the data in devices seized. The circumstances, however, under which the court found the contempt order not in violation of the Fifth Amendment are key; without them, such orders would be improper.

Background

Investigating Doe’s access to child pornography over the internet, the Delaware County Criminal Investigations Unit executed a valid search warrant at Doe’s residence and seized an Apple iPhone 5S and an Apple Mac Pro computer with two attached Western Digital external hard drives, all of which had been encrypted. Police also subsequently seized a password-protected Apple iPhone 6 Plus. Department of Homeland Security agents then applied for a federal search warrant to examine the seized devices. Doe voluntarily provided the password for the Apple iPhone 5S, but refused to provide the passwords to decrypt the Apple Mac Pro computer or the external hard drives. Forensic analysts nevertheless discovered the password to decrypt the Mac Pro computer, but could not decrypt the external hard drives. Forensic examination of the Mac Pro revealed an image of a pubescent girl in a sexually provocative position and logs showing that the Mac Pro had been used to visit sites with titles common in child exploitation, such as “toddler_cp,” “lolicam,” “tor-childporn,” and “pthc.” The forensic examination also disclosed that Doe had downloaded thousands of files known to contain child pornography. The files, however, were not on the Mac Pro, but instead had been stored on the encrypted external hard drives. Accordingly, the files themselves could not be accessed.