The right to remain encrypted: the self-incrimination doctrine in the digital age.

AuthorSoares, Nicholas
  1. INTRODUCTION

    Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. (1) One of the fundamental principles of liberty--that an individual may not be compelled to incriminate himself (2)--is at risk. This risk does not arise from an external source nor from a nascent disagreement with the values inherent in that principle. Rather, the venerable protection against self-incrimination guaranteed by the Fifth Amendment is in danger from a short-sighted and inflexible legal doctrine adopted by a Supreme Court that seems to have lost sight of the principles underlying the Amendment's guarantees, a doctrine that is ill-suited to cope with technological advances in areas such as encryption.

    A pair of recently decided cases exemplifies the shortcomings of the current Self-Incrimination doctrine. In United States v. Fricosu, (3) the United States District Court for the District of Colorado ordered a criminal defendant to provide the Government with an unencrypted version of files from a laptop seized at her residence. When faced with a materially identical set of facts in In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, (4) the United States Court of Appeals for the Eleventh Circuit applied identical doctrine but reached the opposite result, concluding that the defendant did not need to provide the Government with an unencrypted hard drive. This Note will first show that, although the district court's decision in Fricosu contained some analytical flaws, both courts generally adhered to existing doctrine in reaching different results. Next, this Note will demonstrate how the Supreme Court's Fifth Amendment's Self-Incrimination doctrine has drifted away from the original scope of the privilege, and furthermore, how modern doctrine provides significantly less

    protection against self-incrimination than did the original interpretation of the Clause. Finally, this Note will show how the decisions in Fricosu and Doe demonstrate the inability of the current doctrine to cope with technological progress, and will suggest that the current doctrinal problems--and a burgeoning circuit split--may be resolved by returning to a conception of the Clause that is in line with its original meaning.

  2. BACKGROUND

    Both Fricosu and Doe involved an attempt by the Government to force a criminal defendant to produce the contents of encrypted digital storage devices. While the criminal offense alleged in each case was quite different--real estate fraud and possession of child pornography, respectively--both cases raised substantially similar issues of self-incrimination.

    1. United States v. Fricosu

      In May, 2010, agents from the Federal Bureau of Investigation executed a search warrant on the Peyton, Colorado, home of Ramona Fricosu, a home Ms. Fricosu shared with her children and her mother. (5) Ms. Fricosu, along with her former husband Scott Whatcott, was subsequently indicted on various charges arising from allegedly fraudulent real estate transactions. (6) During the search, the federal agents seized several computers. (7) Among these computers was a Toshiba Satellite M305 laptop, retrieved from Ms. Fricosu's bedroom, that the Government alleged belonged to the defendant. (8) The agents were unable to thoroughly investigate the laptop because its contents were encrypted using commercially available software. (9) The Government subsequently obtained an additional warrant to search the laptop and, pursuant to the All Writs Act, (10) sought a writ from the court requiring Ms. Fricosu to produce the unencrypted contents of the computer, (11) Asserting her Fifth Amendment privilege against self-incrimination, Ms. Fricosu declined. (12) On January 23, 2012, after concluding that the laptop belonged to Ms. Fricosu, the United States District Court for the District of Colorado ordered her to turn over an unencrypted copy of the computer's hard drive. (13) The court further ordered that the Government shall "[be] precluded from using [her] act of production of the unencrypted contents of the computer's hard drive against her in any prosecution." (14) The district court based its decision primarily on the idea that the existence and location of the files on the laptop was a "foregone conclusion," and thus that producing them would not implicate the Fifth Amendment. (15)

    2. In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011 [Doe]

      In March 2010, law enforcement officers began investigating the owner of a YouTube.com account whom they suspected of sharing child pornography. (16) The officers traced the IP addresses used to access the account to three hotels and determined that the sole common hotel registrant during the times the account was accessed was the defendant, Doe. (17) In October 2010, law enforcement officers searched Doe's hotel room pursuant to a warrant, seizing several laptop computers and external hard drives. (18) However, the Government could not access certain portions of the hard drives because the drives were encrypted. (19) A grand jury issued a subpoena requiring Doe to produce the unencrypted contents of the hard drive; when Doe refused, citing his Fifth Amendment privilege against self-incrimination, the U.S. Attorney requested that the district court grant him limited "act-of-production" immunity. (20)

      During a heating on a motion to show cause, the Government admitted that, although it believed data existed on the encrypted portions of the hard drives, it was possible that the encrypted sections in fact contained no data. (21) Furthermore, the Government provided no evidence showing that Doe was the only person with access to the hard drives, nor evidence that he was capable of decrypting the contents. (22) At the end of the hearing, the district court held Doe in contempt for refusing to produce the unencrypted contents of the drives. (23) On appeal, the Eleventh Circuit Court of Appeals reversed, holding that Doe's decryption and production of the hard drives' contents triggered the protection of the Fifth Amendment and, furthermore, that the limited act-of-production immunity offered by the Government was insufficient to protect his constitutional rights. (24)

  3. MODERN CONCEPTION OF THE SELF-INCRIMINATION CLAUSE

    The Fifth Amendment to the United States Constitution provides, in relevant part, that "[n]o person ... shall be compelled in any criminal case to be a witness against himself.... " (25) This Constitutional stricture reflects

    our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates a fair state-individual balance by requiring the Government in its contest with the individual to shoulder the entire load, our respect for the inviolability of the human personality and of the right of each individual to a private enclave where he may lead a private life. (26) Under modem Supreme Court precedent, the Amendment does not protect against the self-disclosure of all incriminating evidence. (27) Rather, for the privilege to apply, the communication the defendant is attempting to protect must be compelled, testimonial, and incriminating in nature. (28) When the Government issues a subpoena seeking documents in a criminal case, there can be little doubt that the documents it hopes to find will be incriminating in nature, or that any evidence so produced would be compelled. (29) Even if a communication is both incriminating and compelled, however, it may still not qualify as "testimonial," and hence not be afforded Fifth Amendment protection. Furthermore, a communication that satisfies all three requirements may still be denied Fifth Amendment protection if the information therein is a "foregone conclusion," or if the Government provides immunity from prosecution that is coextensive with the extent of the Amendment's protection.

    1. Testimonial Communications

      The Supreme Court has held that the Self-Incrimination Clause is limited by the word "witness" to those compelled and incriminating communications that are "testimonial" in nature. (30) In order to be considered testimonial, a compelled communication must force the defendant to reveal the contents of his mind; (31) that is, testimony encompasses only those communications by a witness that relate to "either express or implied assertions of fact or belief." (32) Reasoning that compelling a defendant to engage in a physical act does not communicate such assertions, (33) the Court has held that a criminal suspect may be compelled to try on an article of clothing, (34) provide a handwriting, (35) voice, (36) or blood sample (37) without implicating the privilege against self-incrimination. Likewise, the Fifth Amendment ordinarily does not protect a defendant from having to produce existing documents--no matter how incriminating the contents--because the act of production does not involve an inherent assertion of fact or belief. (38)

      However, the Court has made clear that "the act of producing documents in response to a subpoena may have a compelled testimonial aspect" that implicates the privilege. (39) This occurs when the act of production communicates some explicit or implicit statement of fact that would otherwise be considered the contents of the defendant's mind, such as that certain materials exist, that they are in the subpoenaed individual's possession or control, or that they are authentic. (40) While the documents are themselves afforded no Fifth Amendment protection, the act of...

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