Fifth Amendment Act of Production Privilege and Encrypted Data Files (2/25/12)

In In re: Grand Jury Subpoena Duces Tecum Dated March 25, 2011, 670 F.3d 1335 (11th Cir. 2012), here, the Eleventh Circuit decided an important Fifth Amendment case -- whether the compelled witness has a Fifth Amendment privilege as to any "testimony" inherent in the witness' compelled decryption of his hard disk.  This case was not a tax case.  Rather, the underlying crime investigated related to child pornography.  But the implications in  tax cases are apparent, since tax cases often are based on access to computer files.  Indeed, one of the first exercises in the IRS gaining access to computers in criminal tax investigations (whether by search warrant or otherwise) is to image the disks for access and use in the investigation.  Obviously, access and use are impeded by encryption.

Readers will recall that, although there is not normally a Fifth Amendment privilege as to any documents (including computer files) which a witness has voluntarily prepared, the witness being compelled to produce documents has a Fifth Amendment privilege with respect to testimony inherent in the compelled act of producing those documents (or computer files).  This embellishment on the Fifth Amendment is referred to as the Act of Production doctrine that was developed in two important tax cases -- Fisher v. United States, 425 U.S. 391 (1976); and United States v. Hubbell, 530 U.S. 27 (2000).

Not uncommonly, when a witness asserts the Fifth Amendment, the U.S. Attorney will request a district court to grant an immunity order under 18 U.S.C. §§ 6002 and 6003 which grants the compelled witness immunity with respect to any "testimony."  In the context of pre-existing documents or computer files, as involved in the case discussed here, the only testimony is in the act of production.  An immunity order is supposed to be coextensive with the witness' Fifth Amendment privilege.  In the lingo of immunity, that immunity must be derivative use immunity rather than use immunity.  See Kastigar v. United States, 406 U.S. 441(1972).  I offer the following from my book (varied just slightly):

(b) Derivative Use Immunity. 

As we see from the Kastigar discussion later in this section, is conceptualized as co-extensive with the Fifth Amendment privilege.  The Fifth Amendment privilege may be asserted as to testimony that is not only itself incriminating but that might lead to incriminating information.  This type of immunity prevents the prosecutor from using (i) the testimony given and (ii) any leads developed from the testimony. This type of immunity is called “derivative use” immunity, because of the latter feature.  (Immunity offering only use of the testimony given is called use immunity and is more limited than derivative use immunity.)  This type of immunity may be obtained both by statute or by agreement between the witness and the prosecutor. 

Derivative use immunity is sometimes referred to as “use and derivative use immunity” in order to reinforce that it covers use immunity also  I use the shorter form derivative use immunity for it always entails use immunity, to which we now turn. 

(c) Use Immunity. 

From the defendant’s perspective, this is the worst form of immunity and, correspondingly, from the prosecutor’s perspective, the best if immunity has to be given at all.  This form of immunity prohibits use of the testimony given .  It does not prohibit use of leads derived from the testimony.  Because of significant prosecutorial limitations on derivative use immunity, if the prosecutor is inclined to offer immunity at all, it will usually be use immunity.  Statutory immunity is derivative use immunity, so use immunity is available only by agreement with the prosecutor.   

In Grand Jury Subpoena, the district court's order granted only use immunity under the statute.  Therein lay the rub.  The Eleventh Circuit reversed the district court's holding of contempt for disobeying the use immunity order  because the order was for use immunity rather than derivative use immunity.

In getting to that point, the court reasoned as follows:

1. The encrypted files were created voluntarily by the witness and thus there is no Fifth Amendment privilege as to their contents.

2. Ordering the witness to decrypt the hard drive was testimonial under the act of production privilege.

3. There is a supposed exception to the Fifth Amendment privilege for testimony inherent in the act of production (here decryption) if the existence and general nature of the documents (here files) are a foregone conclusion.  The Eleventh Circuit referred to this as the "foregone conclusion" doctrine.  Here is what the Court said about that, discussing Fisher (some citations omitted):

Turning to the taxpayers’ privilege, the Court [in Fisher] treated the taxpayers as retaining possession of the documents.n18  It then held that the taxpayers’ act of production itself could qualify as testimonial if conceding the existence, possession and control, and authenticity of the documents tended to incriminate them. In the cases before it [in Fisher], though, the Court concluded that the act of producing the subpoenaed documents would not involve testimonial selfincrimination because the Government was in “no way relying on the truth telling of the taxpayer.” This explanation became known as the “foregone conclusion” doctrine. The Court expressed it thusly: 

 [Footnte18] The [Fisher] Court said this:  Since each taxpayer transferred possession of the documents in question from himself to his attorney in order to obtain legal assistance in the tax investigations in question, the papers, if unobtainable by summons from the client, are unobtainable by summons directed to the attorney by reason of the attorney-client privilege. We accordingly proceed to the question whether the documents could have been obtained by summons addressed to the taxpayer while the documents were in his possession. The only bar to enforcement of such summons asserted by the parties or the courts below is the Fifth Amendment's privilege against self-incrimination.  Id. at 405, 96 S. Ct. at 1578.

It is doubtful that implicitly admitting the existence and possession of the papers rises to the level of testimony within the protection of the Fifth Amendment . . . . Surely the Government is in no way relying on the “truth telling” of the taxpayer to prove the existence of or his access to the documents. The existence and location of the papers are a foregone conclusion and the taxpayer adds little or nothing to the sum total of the Government’s information by conceding that he in fact has the papers. Under these circumstances by enforcement of the summons “no constitutional rights are touched. The question is not of testimony but of surrender.”
Id. (quoting In re Harris, 221 U.S. 274, 279 (1911) (citation omitted). n19 

 Id. at 405, 96 S. Ct. at 1578.

[Footnote19] The “foregone conclusion” doctrine is a method by which the Government can show that no testimony is at issue. This is related to, but distinct from, the Government’s task in  a criminal case brought against an individual given use and derivative-use immunity to show that evidence protected by the Fifth Amendment privilege is admissible because the Government could have obtained it from a “legitimate source, wholly independent of the compelled testimony.” Kastigar, 406 U.S. at 460, 96 S. Ct. at 1665. If in the case at hand, for example, the Government could prove that it had knowledge of the files encrypted on Doe’s hard drives, that Doe possessed the files, and that they were authentic, it could compel Doe to produce the contents of the files even though it had no independent source from which it could obtain the files.

The Court reasoned that, in essence, the taxpayer’s production of the subpoenaed documents would not be testimonial because the Government knew of the existence of the documents, knew that the taxpayer possessed the documents, and could show their authenticity not through the use of the taxpayer’s mind, but rather through testimony from others. Id. Where the location, existence, and authenticity of the purported evidence is known with reasonable particularity, n20 the contents of the individual’s mind are not used against him, and therefore no Fifth Amendment protection is available.

[Footnote 20] Both the Ninth and D.C. Circuits have adopted this “reasonable particularity” standard with regard to the “foregone conclusion” doctrine. See United States v. Ponds, 454 F.3d 313, 320–21 (D.C. Cir. 2006); In re Grand Jury Subpoena, Dated April 18, 2003, 383 F.3d 905, 910 (9th Cir. 2004). We are persuaded by their reasoning and now follow suit. 

4. The Eleventh Circuit ultimately concluded that the quality of the Government's showing was insufficient to satisfy the foregone conclusion test.  Please note particularly, the Court's footnoted agreement with two earlier cases.  For all of my blogs on the foregone conclusion doctrine, see here.