In an interesting factual landscape arising out of a child pornography investigation, the Eleventh Circuit reversed a contempt sanction yesterday holding that the “decryption and production” of the content on computer hard drives “would trigger Fifth Amendment protection because it would be testimonial, and that such protection would extend to the government’s use of the drives’ contents.”
In April 2011 a subpoena was issued to John Doe requiring him to appear before the grand jury in the Northern District of Florida and produce unencrypted contents located on hard drives of Doe’s laptop computers and external hard drives. Doe invoked his Fifth Amendment privilege against self incrimination. The U.S. Attorney took Doe before the district court and granted Doe “immunity for the act of production of the unencrypted drives” but not the derivative use of the decrypted contents in a criminal prosecution against him.
Doe was then taken back before the grand jury and he still refused to decrypt the hard drives. The government moved to hold Doe in contempt and after a hearing Doe was adjudged to be in civil contempt and ordered taken into custody where he stayed until oral argument in December.
In a broad discussion of the familiar legal principles from Fisher, Hubbell and Kastigar, Judge Tjoflat in an opinion joined in by Judges Martin and Hill, found that the decryption and production would be tantamount to testimony of Doe’s knowledge of the existence, location, possession, control and access of the encrypted files. Therefore, the Fifth Amendment protected Doe’s refusal to decrypt and produce the files.
The Court also noted that the government had tried to improperly split the baby with regard to the statutory immunity afforded under 18 U.S.C. 6002 and 6003. The government’s immunity letter stated that the act of production would be protected, but not the derivative use of the contents of the files. The court noted that the immunity contemplated by 6002 is immunity that requires both use and derivative use immunity.
This case is noteworthy in several respects because this is no doubt an issue commonly encountered in today’s society and the Eleventh Circuit in reaching its holding distinguished several recent district court cases to the contrary.