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Realize that this is a fairly narrow opinion, and, in my opinion, not a particularly well-reasoned one. The issue here is child pornography: the would-be defendant was suspected of having child pornography on various hard drives which were encrypted. The court states that the actual contents of the hard drive are themselves not testimonial—that is, they are not covered by the Fifth Amendment and, if the government had access to the hard drives, they could present whatever was incriminating on them into evidence. So the issue is whether the act of producing the documents is a testimonial act and therefore covered by the Fifth Amendment The court concludes that the act of production is a testimonial act because, one, the testimony was not a "foregone conclusion." This holding is based on a case called Fisher v. United States, in which the Supreme Court stated that it was not testimonial to hand over certain papers that might have incriminating evidence because conceding that documents existed, that you had control over the documents, or that they were in your possession was not incriminatory given the circumstances of that case. Under the "foregone conclusion" doctrine, the government knew of the existence and location of these papers so the production of the papers added nothing or little to the government's information. If the government did NOT know that documents existed, they could not compel a would-be defendant to reveal the documents. Second, and most importantly, the court concluded that decrypting the documents would "use the contents of [the would-be defendant]'s mind" because "the decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files." It's again important to note that this is a child pornography case: possession of child pornography is a crime, so if the would-be defendant here provided a decryption key, this would be tantamount to him admitting that he possessed the hard drive and had access to the files within it—that alone would constitute a crime if the files were found to be child pornography. This is therefore what the court later refers to as an "implied factual statement" and the Fifth Amendment protects this. Although the court also suggests that providing a decryption key might be like providing a combination (and therefore be admissible for Fifth Amendment protection on other grounds), it unfortunately devotes very little space to this discussion—and this seems to be the really big issue here. The case therefore leaves several unanswered questions: this is a child pornography cases where mere possession alone is a crime: what if that wasn't the case? What if this was a murder case and the defendant had stored notes about his murder on the computer? What if the foregone conclusion doctrine wasn't applicable—would the conclusion here be the same (most of the opinion is actually devoted to this discussion, which is less broadly applicable because, if the police know of the existence of specific files on hard drive, this doctrine is inapplicable)? Anyhow: it still is possible to get access to these documents if the government gives him sufficient immunity, as the court notes. This would be pretty important because if no one could ever access these documents (which presumably would be possible if the would-be defendant doesn't decrypt them) that would be an enormous problem for our justice system. In conclusion: the applicability of this case to future cases is unclear, so, for those that want this result, I don't really think this is a "slam dunk." There will likely be many future cases further developing this doctrine. As such, right now, it's very difficult to discuss the merits of the court's holding on the "decryption is testimony" argument (which, in my mind, is the most important) in a general sense, since the reasoning here seems very specific to the facts of case. |
Here's the sticking point for me: it's perhaps overly pedantic, but I want to view the world honestly, and there are some great points of absurdity here. (I always like the absurd, and the ways our world is otherworldly.)
The problem is that much of our approach to information is creative, and we need to start thinking in those terms.
If you have a JPEG of a murder on your unencrypted hard drive, that's not actually a photograph; it's a set of magnetic pointings which can with certain hardware be used to produce a photograph. If you think about it, that also applies to writing on paper, or colored splotches encoding an image into a physical photograph. Those require a creative attempt to produce meaning. The meaning can be off if the creative attempt is not followed through correctly. The easy way to see this is to imagine someone systematically using a common word in an uncommon way -- Feynman for example was once, on the Challenger commission, chasing down memos which sounded like NASA had been actively irresponsible, but instead it turned out to be a figure of speech they'd adopted for a certain phase of their construction. Or imagine that our demented individual really does have a very detailed, lifelike photograph which appears to document his murder of another, but in fact the "murdered" girl is a still-alive actress who was paid to appear in these photographs; the "blood" and such is very convincing but is ultimately a prop.
So the meaning can be off, if the creative act goes awry. I'm using this to underscore that you have to think, at some level, about that recreation of semantics from the physical fact.
Let me be clear: I don't think this is a barrier to investigation usually. I think it's clear that we expect a sort of 'normal hardware' that allows us to recreate semantics. The photographs in this safe, when viewed by a normal person in normal lighting, would show an image of the defendant committing a murder -- and if they want to say that this was all theatrically staged, they may produce the actress or others involved in the production. By that account, photographs inside of a safe are also governed by this principle: even if their physical location happens to be remote and inaccessible, reproducing the image from the photograph is as simple as just looking at it. The photograph really contains the image, up to a 'trivial' semantics.
Now bring this back to your other example of an encrypted disk storing child pornography. That is a nontrivial semantic inflation: you are literally asking the defendant to create child pornography for the purposes of the case. In some sense perhaps you're just saying "create whatever this drive's contents are," with the understanding that the police is going to look through it for child pornography -- in that phrasing, it's more clear that this pornography might not actually exist, etc. -- so there is perhaps a way to comply without generating child pornography at the judge's request.
But still, that's a little mad and absurd in the wonderful way that our world can be otherworldly. It opens up all sorts of questions which I have no clue how to answer. Decryption, like most computation, is a creative act. To demand decryption is to demand creation.
I quoted the above in particular because I really don't care about the "enormous problem for our justice system." Like, the fact that we don't have embedded realtime GPS trackers installed in our spines is an "enormous problem for our justice system" because it makes it so tremendously hard to figure out whether our alibis are true or false. Screw that sort of thinking. Whatever caused the investigators to think this individual was manufacturing or downloading kiddie porn should have been enough to convict. This shouldn't be a gray-matter area. "We just cracked down on this peer-to-peer kiddie porn program, we saw that you were using it to share many images, here are the filenames that the defendant's computer was sharing at the time we busted into his house with a warrant." (Are the police allowed to download such things? Probably. "Here are just a couple of the images we downloaded from him," too, then.) So, if they don't have a case and are fishing through the hard drive to try to make one, that's more or less explicitly what the Fifth Amendment is supposed to guard against: "we don't know your exact sins but we know you're a sinner so damn it, confess!"
But still, the sticking point is the glorious absurdity: "Mr. Doe, we have reason to believe that if you say the magic word, your computer will manufacture child pornography. We demand that you say the magic word, so that we know whether this is true." How will we decide that issue in the face of its pure and present absurdity?