The Testimonial Aspects of Compelled Decryption of Devices for Grand Juries

The Testimonial Aspects of Compelled Decryption of Devices for Grand Juries

In recent years, grand juries have increasingly sought to compel individuals to decrypt their personal electronic devices like smartphones and laptops during investigations. This issue sits at the intersection of the Fifth Amendment’s protection against self-incrimination and the government’s investigative powers. There are good-faith arguments on both sides.

The Fifth Amendment states that no person “shall be compelled in any criminal case to be a witness against himself.”¹ This suggests individuals cannot be forced to provide incriminating evidence against themselves, including decrypting devices containing such evidence. Some experts argue compelled decryption requires providing a “testimonial” act implying knowledge of the password and control over the device and contents.² They believe the Fifth Amendment may protect against such compelled self-incrimination.

However, courts have also ruled the Fifth Amendment does not protect the evidence itself, just the act of producing it. In some cases, courts have said providing a decryption password is not testimonial if the government can show the defendant owns the device.³ Additionally, grand juries have broad investigative powers that can override protections against self-incrimination.

There are complex legal and technical questions around whether providing a decryption password necessarily implies ownership of a device’s contents. This issue will likely continue evolving as technology advances and new court rulings balance civil liberties and investigative powers.

When Is Compelled Decryption Testimonial?

A key question is whether compelled decryption qualifies as a “testimonial” act protected by the Fifth Amendment. Providing a password or biometric like a fingerprint to decrypt a device can imply ownership, control, and knowledge of the contents.⁴ This may meet the testimonial threshold.

However, some courts have argued compelled decryption is not testimonial if the government can independently show the defendant owns the device. This lowers the bar for overriding Fifth Amendment protections.⁵

There is also debate around whether biometric decryption is testimonial. Some view it as providing physical evidence, not testimony. But others argue it still implies knowledge of ownership and control, so should also be protected.⁶

Christine Twomey

2024-03-21

Just had my Divorce case settled 2 months ago after having a horrible experience with another firm. I couldn’t be happier with Claire Banks and Elizabeth Garvey with their outstanding professionalism in doing so with Spodek Law Group. Any time I needed questions answered they were always prompt in doing so with all my uncertainties after 30 yrs of marriage.I feel from the bottom of my heart you will NOT be disappointed with either one. Thanks a million.

Brendan huisman

2024-03-18

Alex Zhik contacted me almost immediately when I reached out to Spodek for a consultation and was able to effectively communicate the path forward/consequences of my legal issue. I immediately agreed to hire Alex for his services and did not regret my choice. He was able to cover my case in court (with 1 day notice) and not only was he able to push my case down, he carefully negotiated a dismissal of the charge altogether. I highly recommend Spodek, and more specifically, Alex Zhik for all of your legal issues. Thanks guys!

Guerline Menard

2024-03-18

Thanks again Spodek law firm, particularly Esq Claire Banks who stood right there with us up to the finish line. Attached photos taken right outside of the court building and the smile on our faces represented victory, a breath of fresh air and satisfaction. We are very happy that this is over and we can move on with our lives. Thanks Spodek law 🙏🏼🙏🏼🙏🏼🙏🏼🙌🏼❤️

Keisha Parris

2024-03-15

Believe every single review here about Alex Z!! From our initial consultation, it was evident that Alex possessed a profound understanding of criminal law and a fierce dedication to his clients rights. Throughout the entirety of my case, Alex exhibited unparalleled professionalism and unwavering commitment. What sets Alex apart is not only his legal expertise but also his genuine compassion for his clients. He took the time to thoroughly explain my case, alleviating any concerns I had along the way. His exact words were “I’m not worried about it”. His unwavering support and guidance were invaluable throughout the entire process. I am immensely grateful for Alex's exceptional legal representation and wholeheartedly recommend his services to anyone in need of a skilled criminal defense attorney. Alex Z is not just a lawyer; he is a beacon of hope for those navigating the complexities of the legal system. If you find yourself in need of a dedicated and competent legal advocate, look no further than Alex Z.

Taïko Beauty

2024-03-15

I don’t know where to start, I can write a novel about this firm, but one thing I will say is that having my best interest was their main priority since the beginning of my case which was back in Winter 2019. Miss Claire Banks, one of the best Attorneys in the firm represented me very well and was very professional, respectful, and truthful. Not once did she leave me in the dark, in fact she presented all options and routes that could possibly be considered for my case and she reinsured me that no matter what I decided to do, her and the team will have my back and that’s exactly what happened. Not only will I be liberated from this case, also, I will enjoy my freedom and continue to be a mother to my first born son and will have no restrictions with accomplishing my goals in life. Now that’s what I call victory!! I thank the Lord, My mother, Claire, and the Spodek team for standing by me and fighting with me. Words can’t describe how grateful I am to have the opportunity to work with this team. I’m very satisfied, very pleased with their performance, their hard work, and their diligence. Thank you team!

Anthony Williams

2024-03-12

Hey, how you guys doing? Good afternoon my name is Anthony Williams I just want to give a great shout out to the team of. Spodek law group. It is such a honor to use them and to use their assistance through this whole case from start to finish. They did everything that they said they was gonna do and if it ever comes down to it, if I ever have to use them again, hands-down they will be the first law office at the top of my list, thank you guys so much. It was a pleasure having you guys by my side so if you guys ever need them, do not hesitate to pick up the phone and give them a call.

Loveth Okpedo

2024-03-12

Very professional, very transparent, over all a great experience

Bee L

2024-02-28

Amazing experience with Spodek! Very professional lawyers who take your case seriously. They treated me with respect, were always available, and answered any and all questions. They were able to help me very successfully and removed a huge stress. Highly recommend.

divesh patel

2024-02-24

I can't recommend Alex Zhik and Spodek Law Firm highly enough for their exceptional legal representation and personal mentorship. From the moment I engaged their services in October 2022, Alex took the time to understand my case thoroughly and provided guidance every step of the way. Alex's dedication to my case went above and beyond my expectations. His expertise, attention to detail, and commitment to achieving the best possible outcome were evident throughout the entire process. He took the time to mentor me, ensuring I understood the legal complexities involved to make informed decisions. Alex is the kind of guy you would want to have a beer with and has made a meaningful impact on me. I also want to acknowledge Todd Spodek, the leader of the firm, who played a crucial role in my case. His leadership and support bolstered the efforts of Alex, and his involvement highlighted the firm's commitment to excellence. Thanks to Alex Zhik and Todd Spodek, I achieved the outcome I desired, and I am incredibly grateful for their professionalism, expertise, and genuine care. If you're in need of legal representation, look no further than this outstanding team.

Load more

Google rating score: 4.9 of 5, based on 736 reviews

The Foregone Conclusion Doctrine

Even if compelled decryption is testimonial, the “foregone conclusion” doctrine can override Fifth Amendment protections. If the government already knows the evidence a compelled act will produce, it is a “foregone conclusion” and not protected.⁷

In compelled decryption cases, the government argues that if it can describe the device’s files, decryption is a foregone conclusion. But critics say this improperly conflates unlocking a device with searching its contents.⁸

This issue likely needs clarification from higher courts. The legal standards for applying the foregone conclusion doctrine in compelled decryption cases remain uncertain.

Balancing Investigative Powers and Civil Liberties

This issue essentially balances the grand jury’s broad investigative powers with individual civil liberties. Grand juries can override certain rights to gather evidence, but the Fifth Amendment still protects against self-incrimination.

From an investigative standpoint, encryption can seriously obstruct investigations if suspects cannot be compelled to provide access. Encryption is increasingly ubiquitous on modern devices that store vast amounts of potential evidence.⁹

However, civil liberties advocates argue that protecting individuals from self-incrimination uphold core Constitutional principles that should not be encroached simply because technology has evolved.

There are also concerns that compelling decryption could set a precedent for undermining digital privacy rights more broadly.

Looking Ahead

This complex issue sits at the intersection of technology and Constitutional law. There are good-faith arguments on both sides, and compelling interests to balance. As technology continues advancing, the courts will likely need to issue new guidance on how Fifth Amendment protections apply specifically to compelled decryption.

Higher courts may need to clarify issues like the proper application of the foregone conclusion doctrine in these cases. As device encryption becomes more widespread, this issue will likely arise more frequently in investigations.

In the meantime, this legal gray area will continue leading to conflicting rulings between courts. But both individual privacy rights and legitimate investigative powers deserve consideration. Any new standards or precedents will need to strike the right balance.

1. U.S. Const. amend. V.
2. Stephanie Lacambra, Defending Against the Digital Dragnet: Fighting Compelled Password Disclosure and Decryption, Electronic Frontier Foundation (Oct. 31, 2017).
3. United States v. Spencer, No. 17 CR 259, 2018 WL 1964588 (N.D. Cal. Apr. 26, 2018).
4. In re Grand Jury Subpoena Duces Tecum, 670 F.3d 1335 (11th Cir. 2012).
5. United States v. Spencer, No. 17 CR 259, 2018 WL 1964588 (N.D. Cal. Apr. 26, 2018).
6. Michael Price & Zach Simonetti, Defending Device Decryption Cases, 43 Champion 42 (2019).
7. Fisher v. United States, 425 U.S. 391 (1976).
8. Laurent Sacharoff, Unlocking the Fifth Amendment: Passwords and Encrypted Devices, 87 Fordham L. Rev. 203 (2018).
9. Riley v. California, 573 U.S. 373 (2014).