USA Today's Brad Heath has dug up another use for the FBI's now-infamous All Writs Act orders: skirting the Fifth Amendment. In a 2015 case currently headed to the Appeals Court, the government is attempting to use All Writs to force a defendant to unlock his devices.
The order finding Francis Rawls guilty of contempt contains a footnote pointing to the government's use of an All Writs order to force Rawls to unlock his devices -- and, one would think -- allow the government to dodge a Fifth Amendment rights violation.
On July 29, 2015, the Government obtained a search warrant for certain electronic media previously seized by Delaware County and Philadelphia County law enforcement officials. Dkt. No. 1. On August 3, 2015, the Government made an application pursuant to that All Writs Act to require Francis Rawls to assist in the execution of a previously executed search warrant.
"Assist in the execution" means forcing Rawls to possibly provide evidence against himself, depending on what's contained in the devices. However, the court didn't see it this way. It considered his unlocking of the devices to be "non-testimonial." While it did grant him a chance to respond to the All Writs application, it ultimately found in favor of the government.
Importantly, the August 27th Order rejected Rawls contention that providing any assistance to the Government would violate his Fifth Amendment privilege against self-incrimination.
More on the court's reasoning can be found in the order
granting the government's All Writs application -- again relegated to a footnote.
By way of a "Motion to Quash Government's Application to Compel" filed August 26, 2015, Mr. Rawls objects to providing assistance to the government in the execution of the search warrant because his act of decrypting the electronic devices seized by the government would be considered testimonial and, therefore, violate his Fifth Amendment privilege against self-incrimination. However, federal courts have recognized the "foregone conclusion" doctrine. The courts hold that the act of production of encryption codes is not testimony - even if this production conveys a fact regarding the possession or authenticity of the images contained in the electronic devices - if the government can show with "reasonable particularity" that, at the time it sought to compel the assistance of Mr. Rawls, it already knew of the materials, thereby making any testimonial aspect a "foregone conclusion."
Here, the Affidavit of Special Agent David Bottalico, supporting the application for a Search Warrant, establishes that (1) the Government has custody of the electronic devices; (2) prior to the Government's seizure, Mr. Rawls possessed, accessed and owned all the electronic devices; and (3) there are images on the electronic devices that constitute child pornography. Therefore, under the "foregone conclusion" doctrine, requiring Mr. Rawls to assist in the decrypting of those devices does not violate his privilege against self-incrimination.
According to this reasoning, the government already "knows" what's contained on the devices, so there's nothing incriminating about Rawls unlocking them for it. But why would that require the use of an All Writs order? It would seem if the evidence is a "foregone conclusion," then there's no need for the devices to be unlocked at all. The government should have all the evidence it needs to continue with its prosecution.
The All Writs Act is in place to work around limitations in law -- for situations where current laws don't completely apply. Lately, it seems to used most often to advance ahead of Congress and exploit areas where technology has outpaced legislation. In this case, the Act is being used to create a loophole in the Fifth Amendment -- seemingly for no other reason than to allow the government to bolster its case. While that is the point of seeking evidence, it would appear the government already
has evidence of criminal activity and is using All Writs to do what it can't do directly without jeopardizing its prosecution: force Rawls to unlock his devices.
The case citations are also illuminating. Apparently all the government needs to acquire an All Writs order compelling decryption is the knowledge that a.) said device exists and b.) the government knows where it is located.
[U]nited States v. Sabit, 2014 WL 1317082, at *2 (E.D. Mich. April 1, 2014) ("[W]hen a witness produces a document that the government knows exists, the act of production is tantamount to a "surrender" and is not "testimonial.")
United States v. Fricosu, 841F.Supp.2d1232, 1236 (D. Colo. 2012) (defendant's Fifth Amendment privilege against self-incrimination was not implicated by requiring her to produce the unencrypted contents of a computer, when the government knew of the existence and location of the computer's files); In re Boucher, 2009 WL 424718, at *3 (D. Vt. Feb. 19, 2009) (requiring defendant to produce an unencrypted version of his laptop's Z drive did not constitute compelled testimonial communication when the government previously knew the location of the Z drive and its files).
Brad Heath notes that this a "more common" use for All Writs requests. There does appear to be some history here. Notably, a similar effort made during a prosecution over similar subject matter was denied
by a magistrate judge in Wisconsin. While the judge in the 2015 case found the unlocking of devices to be "non-testimonial" and a foregone conclusion, Judge William E. Callahan Jr. found it to be "compelled incrimination" -- a violation of the defendant's Fifth Amendment rights.
This is a close call, but I conclude that Feldman’s act of production, which would necessarily require his using a password of some type to decrypt the storage device, would be tantamount to telling the government something it does not already know with “reasonably particularity”—namely, that Feldman has personal access to and control over the encrypted storage devices. Accordingly, in my opinion, Fifth Amendment protection is available to Feldman. Stated another way, ordering Feldman to decrypt the storage devices would be in violation of his Fifth Amendment right against compelled self-incrimination.
The only difference between the two cases is the strength of the government's assertions as to the defendant's "personal access and control" of the devices in question. Because much of the docket is sealed
in the 2015 case involving Rawls, we can't see firsthand what evidence the government provided that makes this
case stronger than the 2013 case where its All Writs request was denied. (We do have access to Rawls' lawyer's arguments
to the contrary.) The footnote contained in the contempt order only points to an affidavit by an FBI agent stating that devices were in Rawls' possession and he owned them -- right up until they were seized.
So, it appears the Fifth Amendment only goes so far in the US judicial system. But if it's that limited, it would seem an All Writs order is extraneous. If there's nothing protecting defendants from incriminating themselves when compelled by an All Writs order, then there's nothing stopping the FBI from "sweating down" defendants until they comply. As interpreted in this case, the only difference between an All Writs order and several hours of nonstop interrogation is FBI man-hours.
Rawls' case made be headed for the Appeals Court, but he'll be spending that intervening time in jail. His motion to stay the contempt order pending appeal was also denied.