from the still-no-definitive-answer-on-the-Fifth-Amendment-though dept
The Third Circuit Court of Appeals has ruled that passwords can be compelled with All Writs Orders. Handing down a decision in the case of Francis Rawls, a former Philadelphia police officer facing child porn charges, the court finds the order lawful, but doesn't go quite as far as to determine whether compelling password production implicates the Fifth Amendment.
The Third Circuit doesn't touch the Fifth Amendment implications because Rawls failed to preserve them.
Even if we could assess the Fifth Amendment decision of the Magistrate Judge, our review would be limited to plain error. See United States v. Schwartz, 446 F.2d 571, 576 (3d Cir. 1971) (applying plain error review to unpreserved claim of violation of privilege against self-incrimination). Doe’s arguments fail under this deferential standard of review.
Orin Kerr highlights a footnote from the order [PDF], which shows even if the court had addressed the Fifth Amendment implications, it likely would have sided with government based on its interpretation of the government's "foregone conclusion" argument.
It is important to note that we are not concluding that the Government’s knowledge of the content of the devices is necessarily the correct focus of the “foregone conclusion” inquiry in the context of a compelled decryption order. Instead, a very sound argument can be made that the foregone conclusion doctrine properly focuses on whether the Government already knows the testimony that is implicit in the act of production. In this case, the fact known to the government that is implicit in the act of providing the password for the devices is “I, John Doe, know the password for these devices.” Based upon the testimony presented at the contempt proceeding, that fact is a foregone conclusion.
However, because our review is limited to plain error, and no plain error was committed by the District Court in finding that the Government established that the contents of the encrypted hard drives are known to it, we need not decide here that the inquiry can be limited to the question of whether Doe’s knowledge of the password itself is sufficient to support application of the foregone conclusion doctrine.
This interpretation limits what the government has to assert to avail itself of this argument -- one that's sure to become more common as default encryption comes to more devices and communications services. As applied here, the government only has to show the defendant knows the password. It doesn't have to make assertions about what it believes will be found once the device/account is unlocked. (That being said, the DHS performed a forensic scan of the one device it could access -- the MacBook Pro -- and found data and photos suggesting the locked external drives contained more child pornography.)
The court also addresses the All Writs Act being used to compel password production in service to a search warrant that still can't be fully executed.
Doe asserts that New York Telephone should not apply because the All Writs Act order in that case compelled a third party to assist in the execution of that warrant, and not the target of the government investigation. The Supreme Court explained, however, that the Act extends to anyone “in a position to frustrate the implementation of a court order or the proper administration of justice” as long as there are “appropriate circumstances” for doing so. Id. at 174. Here, as in New York Telephone: (1) Doe is not “far removed from the underlying controversy;” (2) “compliance with [the Decryption Order] require[s] minimal effort;” and (3) “without [Doe’s] assistance there is no conceivable way in which the [search warrant] authorized by the District Court could [be] successfully accomplished.” Id. at 174-175. Accordingly, the Magistrate Judge did not plainly err in issuing the Decryption Order.
This shows just how malleable the New York Telephone decision is. This 1977 Supreme Court decision paved the way for widespread pen register use. Since that point, it has been used by the DOJ to argue for the lawfulness of encryption-defeating All Writs Orders (as in the San Bernardino iPhone case), as well as by criminal defendants arguing these same orders are unlawful.
In Apple's case, the government argued the company was not "far removed" from the controversy, despite it being only the manufacturer of the phone. Apple's distance as a manufacturer provided its own argument against the DOJ's application of this Supreme Court decision.
In this case, the key words are "third party": Rawls is arguing this isn't nearly the same thing as forcing a phone company to comply with pen register orders. This is a "first party" situation where compliance may mean producing evidence against yourself for use in a criminal trial. The government likes the New York Telephone decision for its Fourth Amendment leeway. The defendant here is arguing this isn't even a Fourth Amendment issue.
As the court points out, it can't really assess the Fifth Amendment argument -- not when it hasn't been preserved for appeal. But even so, the court says law enforcement already has enough evidence to proceed with prosecution. If so, the only reason the government's pressing the issue -- which has resulted in Rawls being jailed indefinitely for contempt of court -- is that it wants a precedential ruling clearly establishing the lawfulness of compelling the production of passwords. The court doesn't quite reach that point, but the ruling here seems to suggest it will be easier (in this circuit at least) to throw people in jail for refusing to hand over passwords, since all the government is really being forced to establish is that it knows the defendant can unlock the targeted devices/accounts.