Fifth Amendment Protects Defendant’s Refusal to Produce Encrypted Computer Files
In RE: GRAND JURY SUBPOENA DUCES TECUM DATED MARCH 25, 2011 UNITED STATES OF AMERICA, v. JOHN DOE, Appellant, 2012 WL 579433, Nos. 11–12268 & 11–15421, is a decision of the United States Court of Appeals, Eleventh Circuit (February 23, 2012) in an appeal of a judgment of civil contempt in the United States District Court for the Northern District of Florida.
“John Doe” was served with a subpoena duces tecum requiring him to appear before a Grand Jury in a child pornography investigation and produce the unencrypted contents on the hard drives of Doe’s previously seized laptop computers and five external hard drives. Doe informed the United States Attorney that, when he appeared before the grand jury, he would invoke his Fifth Amendment privilege against self-incrimination and refuse to comply with the subpoena.
The U.S. Attorney immediately moved the district court for an order requiring Doe to show cause why Doe should not be held in civil contempt. Doe explained that he invoked his Fifth Amendment privilege against self-incrimination because the Government’s use of the decrypted contents of the hard drives would constitute derivative use of his immunized testimony. The court rejected Doe’s explanations, adjudged him in contempt of court, and ordered him incarcerated. Doe appealed the ruling.
The United States Court of Appeals, Eleventh Circuit, ruled in Doe’s favor, finding that the district court had erroneously concluded that Doe was not protected by the Fifth Amendment in his refusal to comply with the court order because, by decrypting the contents, he would be testifying that he, as opposed to some other person, placed the contents on the hard drive, encrypted the contents, and could retrieve and examine them whenever he wished. The Court held that even if the decryption and production of the contents of the hard drives themselves were not incriminatory, they were a “link in the chain of evidence” that was designed to lead to incriminating evidence, and this was sufficient to invoke the Fifth Amendment privilege.
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