from the be-careful-what-you-ask-for dept
The DOJ is testing some waters it may not want to be troubling, not with hundreds of prosecutions stemming from the January 6 Capitol raid on the docket. It has asked the DC court to compel a defendant to decrypt his laptop so the FBI can search it for evidence. (h/t Marcy Wheeler)
The government is seeking an All Writs Act order [PDF] forcing the alleged device owner to unlock the device using either his face or his passcode.
The government respectfully moves for an order compelling the defendant to produce a critical piece of evidence – his Microsoft Surface Pro laptop computer – in an unencrypted state. The government proposes a two-step process: First, the defendant should be ordered to place his face in front of the computer’s camera, so that the computer can be biometrically unlocked. Second, if the biometric attempt does not unlock the computer, the defendant should be ordered to type his passcode or PIN into the computer.
Having failed to obtain consent, the government is now hoping to achieve this by force. This isn’t a particularly wise idea considering how many cases it’s currently juggling in this circuit. If the court decides this violates the Fifth Amendment, it may negatively affect other prosecutions involving secured devices.
The government argues there’s no Fifth Amendment issue here.
The requested relief would not violate the defendant’s Fourth or Fifth Amendment rights. With respect to the Fourth Amendment, there is only minimal intrusion on the defendant’s privacy, and there is probable cause that the defendant’s face can unlock the Subject Device (and lead to the recovery of relevant evidence). With respect to the Fifth Amendment, Reffitt’s entering his password into the Subject Device does not violate his privilege against self-incrimination, because his act of production would not be testimonial, since the only potentially testimonial component implicit in his act of producing the unlocked/unencrypted device is a foregone conclusion.
This will come down to what the court feels the phrase “foregone conclusion” actually means. While the act itself (either presenting biometrics or providing a passcode) isn’t necessarily testimonial, it does give the government access to evidence that might be used against the person being compelled to grant access to this information. At least one court has found that entering passwords and providing evidence are basically the same thing, since the first naturally leads to the latter. The government has no interest in the password, even though that’s what it is seeking to compel. It’s interested in what having that password entered will provide.
If the only foregone conclusion the government needs to have in its possession is who owns the computer, obviously compelled decryption will help establish ownership. The government appears to know whose computer it is. The Surface Pro targeted by the proposed order displays the name of the defendant (Guy Reffitt) on the screen when opened. And, despite Reffitt (initially) telling investigators otherwise, one of Reffitt’s family members confirmed it belonged to the defendant.
Having that much information on hand might be enough to compel decryption if the court decides the only foregone conclusion the government needs to reach is the most likely owner of the device it’s seeking to unlock. But if the foregone conclusion bar is set higher — a likely source of criminal evidence — things will get much more difficult for the government.
The government is basing this request on the theory that recordings captured at the Capitol by the suspect’s helmet-mounted camera were moved to the laptop for storage prior to their deletion from the camera. However, the government seized multiple devices from the defendant’s home, including three phones, two other laptops, and one desktop computer. Most of those have been searched already and determined they don’t hold any relevant data.
The government is assuming — based on statements by family members who viewed recordings on that device — that’s where the recordings it is seeking are now located. But it won’t know this until after it performs a search. And it can’t perform a search until the device is unlocked. This assumption is credible, but the files could have been uploaded to the cloud and viewed on the device, which means the files the government concludes (in a foregone way) must reside on the laptop possibly aren’t actually there.
If the court decides the government doesn’t have more than a hunch at this point, it may deny this order. And it may decide to lay down some Fifth Amendment ground rules that eliminate compelled production as an option. This is a roll of the Constitutional dice the government may later regret — a rerun of its failure to compel decryption assistance in the San Bernardino case. But if it goes the other way, it will become that much easier for the government to pursue prosecutions in a district that handles an outsized portion of the DOJ’s cases.