The United States Court of Appeals for the Third Circuit has ruled that a defendant in a child pornography criminal case was properly held in contempt for refusing to decrypt two external hard drives confiscated by the government pursuant to a warrant. The appellate court upheld a district court’s determination that the defendant’s Fifth Amendment rights would not be violated because, based upon the government’s investigation, it was already a foregone conclusion that child pornography files were on the devices. United States v. Apple MacPro Computer, No. 15-3537 (3d Cir. 3/20/17).
The government seized the defendant’s two iPhones, Apple Mac Pro computer and two external hard drives as a part of its investigation into the defendant’s access to online child pornography. The defendant voluntarily provided the password to access one of his iPhones, but denied access to an application on the phone that contained encrypted information. Forensic analysis concluded that the phone’s encrypted database contained over 2,000 image and video files. A forensic analyst discovered the computer’s password, and the forensic examination revealed images of child pornography and visits to websites associated with child exploitation. A magistrate judge entered an order requiring the defendant to produce his iPhone for which he did not provide access, computer and external hard drives in a fully unencrypted state. In further proceedings before the district court, the defendant refused to comply and also claimed that he could not remember the passwords to decrypt the hard drives. The district court held him in contempt, and he appealed to the Third Circuit.
The Third Circuit analyzed the government’s ability to compel decryption of digital devices when it seizes those devices pursuant to a valid search warrant. The defendant raised two primary arguments on appeal: (1) the district court did not have subject matter jurisdiction to issue the decryption order and (2) the order itself violated his Fifth Amendment privilege against self-incrimination. The Third Circuit rejected both arguments.
In the district court’s proceeding, the magistrate judge relied upon the All Writs Act, which permits federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” The defendant contended that the magistrate judge did not have jurisdiction to issue the decryption order because the government should have compelled his compliance by means of the grand jury procedure and not the All Writs Act. The Third Circuit disagreed and ruled that the decryption order was a necessary and appropriate means of effectuating the original search warrant.
The Third Circuit found on procedural grounds that the defendant could not on appeal seek plenary consideration of the Fifth Amendment issue. Nonetheless, the appellate court also found that there was no plain error in the magistrate judge’s ruling. While noting that it had not yet confronted the Fifth Amendment implications of compelled decryption, the Third Circuit referenced an Eleventh Circuit ruling concluding that the privilege against self-incrimination should apply. The Third Circuit, however, distinguished that analysis from the case before it. Here, the government provided evidence to show both that files exist on the encrypted portions of the devices and that the defendant can access them, making it a “foregone conclusion” that any testimonial component of defendant’s actions would add little or nothing to the information already obtained by the government. The Third Circuit was careful to note that its analysis was limited to the case before it.
As we have recently seen, issues of decryption of devices are posing evolving challenges for courts applying the All Writs Act and constitutional principles dating back to our founding fathers to modern technology and challenges in criminal investigations. We will continue to report on rulings seeking to strike the proper balance between the government’s need to conduct full and proper investigations and an individual’s constitutional rights.