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Ninth Circuit Decryption Order Creates an Improper Shortcut Around the Fifth Amendment

Posted By admin 2018-04-02 16:03:13

A decision last week by U.S. Magistrate Judge Jacqueline Scott Corley of the Northern District of California ordered a criminal defendant to decrypt his device, and could mark a troubling shift in Fifth Amendment law in favor of greater government access to encrypted data.

The defendant subject to the Ninth Circuit’s order to decrypt was charged with possession and distribution of child pornography. He cooperated in unlocking his iPhone and laptop for police, but investigators were unable to access encrypted folders on those devices.

The Ninth Circuit ultimately found that the defendant, by handing over his passwords, provided prosecutors with information that was a “foregone conclusion” and exempt from Fifth Amendment protection. The Fifth Amendment of the United States Constitution generally protects a witness from being forced to provide incriminating information that could expose her to an accusation or criminal charge. The “foregone conclusion” is an exception to Fifth Amendment protection. Information is a “foregone conclusion” if it is already known to the government-meaning that the government could describe the pertinent facts of that information with reasonable particularity before they are provided by the witness.

Corley ruled that because law enforcement officials had already demonstrated through other evidence that the defendant knew the passwords to unlock the devices, his knowledge of the password was already a foregone conclusion. As a result, the Court decided that the defendant can be ordered to unlock his devices without violating his Fifth Amendment rights.

Corley’s ruling for the Ninth Circuit stands in contrast to a 2012 ruling from the Eleventh Circuit that in order for the foregone conclusion doctrine to apply, prosecutors had to show with “reasonable particularity” that they already knew what was on the encrypted hard drives seized during a child pornography investigation. They could not, and so the court reversed a decision by a district judge compelling decryption.

The Ninth Circuit’s ruling carves out from the Fifth Amendment a worrisome shortcut for investigators to decrypt electronic devices. The government will now likely be able to obtain an order to decrypt in most child pornography and other cases involving digital evidence because proving that an accused knows the password to her device is simple. It could be as simple as showing that the device was in the accused’s pocket.

As a Los Angeles criminal defense attorney who specializes in child pornography cases, I have gained specialized expertise in the Fifth Amendment case law as it applies to encryption. My respectful view is that the Ninth Circuit erred in its ruling. The crux of the self-incrimination privilege is that the government cannot compel evidence from the minds of the suspects themselves. Compelled decryption is inherently testimonial because it compels a suspect to use the contents of their mind to translate unintelligible evidence into a form that can be used against them. The Fifth Amendment, in my view, provides an absolute privilege against such self-incriminating compelled decryption.

The United States Supreme Court has stated:

Too many, even those who should be better advised, view [the Fifth Amendment] privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege.

In the modern digital age where encryption is routine practice for individuals and businesses alike to protect their sensitive information, the Ninth Circuit ruling should be worrisome to all.

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