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

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).