Third Circuit Court of Appeals: Suspect Who Refuses to Provide Password Can Only Be Held in Contempt For 18 Months

Feb 13

The Third Circuit Court of Appeals has decided the case of United States v. Apple Mac Pro Computer, holding that the suspect in a Philadelphia federal child pornography case could only be held for eighteen months for refusing to provide the password to his laptop in response to a court order.

In Pennsylvania and the federal system, prosecutors have increasingly sought court orders in an attempt to compel suspects to unlock their electronic devices in investigations involving internet crimes and illegal pornography. Pennsylvania state courts have found that these types of orders are likely to violate a defendant’s Fifth Amendment rights, but the Third Circuit Court of Appeals has adopted the foregone conclusion doctrine which holds that a suspect can be compelled to produce a password when the Government can prove that the suspect owns the device in question and knows the password. The penalty for refusing to comply can be civil contempt in which the person is jailed until they eventually give up the password. This decision holds that a suspect who refuses to comply with this type of order can only be incarcerated for at most eighteen months, meaning they can no longer be held indefinitely.

United States v. Apple Mac Pro Computer

The defendant was a former Philadelphia Police Sergeant who was under federal investigation for possessing child pornography. As part of that investigation, the Delaware County Criminal Investigations Unit executed a search warrant on the suspect’s residence. As a result of that search warrant, government agents obtained the suspect’s Apple iPhone 5S, an Apple iPhone 6 Plus, and an Apple Mac Pro Computer with two attached Western Digital External Hard Drives, all of which were protected with encryption software.

Agents from the Department of Homeland Security then obtained a federal search warrant to examine the seized devices. The suspect voluntarily provided the password for the Apple iPhone 5S, but he did not provide the passwords to decrypt the Mac Pro or the external hard drives. Ultimately, forensic analysts discovered the password to decrypt the Mac Pro, they but could not determine the passwords to decrypt the external hard drives. Forensic examination of the Mac Pro revealed (1) an image of a pubescent girl in a sexually provocative position, (2) logs showing that the Mac Pro had been used to visit websites with titles common in child exploitation, and 3) that the suspect had downloaded thousands of files known to be child pornography. Those files were not on the Mac Pro. Instead, they were stored on the encrypted external hard drives. In the course of their investigation, officers interviewed the man’s sister who stated that the suspect had shown her hundreds of images of child pornography on the encrypted external hard drives, which included videos of children who were nude and engaged in sex acts with other children. However, without a password to decrypt the hard drives, the agents could not access the files themselves, making a criminal prosecution difficult.

In August 2015, a Federal Magistrate Judge ordered the former Philadelphia Officer to produce all encrypted devices, including his external hard drives, in a fully unencrypted state. The suspect did not appeal the order, but instead filed a motion to quash the Government’s application to compel decryption, arguing that the act of decrypting the devices would violate his Fifth Amendment privilege against self-incrimination. Eventually, his motion was denied, and he was directed to fully comply with the decryption order. The Magistrate Judge acknowledged the suspect’s Fifth Amendment objection but held that because the Government possessed his devices and knew that their contents included child pornography, the act of decrypting them would not be testimonial for purposes of the Fifth Amendment privilege against self-incrimination.

Approximately one week after the denial of the motion to quash, the suspect and his attorney appeared at the Delaware County Police Department for the forensic examination of his devices. He produced the Apple iPhone 6 Plus in a fully unencrypted state by entering three separate passwords on the device. The phone contained adult pornography, a video of the defendant’s niece in which she was wearing only her underwear, and approximately twenty photographs which focused on the genitals of his niece. The man stated that he could not remember the passwords necessary to decrypt the hard drives and entered several incorrect passwords during the forensic examination.

Following the forensic examination, the Government moved for an order to show cause why the suspect should not be held in contempt for his failure to abide by the decryption order. Following the hearings on this issue, the District Court found that the suspect remembered the passwords but chose not to provide them to the government agents. On September 30, 2015, the suspect was held in contempt. The court ordered that he would be held indefinitely until he agreed to comply with the order. He immediately appealed this decision, and the Third Circuit upheld his contempt order. The suspect eventually filed a motion to vacate the contempt order and order his release because, at the time of this subsequent appeal, he had been in custody for more than 18 months.

What is Civil Contempt in Federal Court?

28 U.S.C. § 1826 (a) governs civil contempt. The statute states:

Whenever a witness in any proceeding before or ancillary to any court or grand jury of the United States refuses without just cause shown to comply with an order of the court to testify or provide other information, including any book, paper, document, record, recording, or other material, the court, upon such refusal, or when such refusal is duly brought to its attention, may summarily order his confinement at a suitable place until such time as the witness is willing to give such testimony or provide such information.

In other words, this statute gives judges authority to incarcerate or fine individuals who refuse to comply with an order to provide requested information. This order could involve testimony in a court proceeding (i.e. a grand jury proceeding), but it could also involve specific documents, passwords, emails or almost anything that could be of some evidentiary value.

What is the Difference Between Civil Contempt and Criminal Contempt?

Civil contempt is frequently used in Federal litigation. The main difference between civil and criminal contempt is that civil contempt is designed to compel compliance with a particular order, whereas criminal contempt is designed to punish. Although in the instant case involves a potential criminal proceeding, civil contempt is very common in cases where a witness is compelled to testify in a grand jury hearing but refuses to do so even after being granted immunity.

It is also important to note that the burden of proof is different in each type of hearing. In a criminal contempt case, the Government must prove its case beyond a reasonable doubt, whereas in a civil contempt hearing, the burden is clear and convincing evidence and thus not as difficult to prove as criminal contempt.

The Third Circuit’s Decision

The Third Circuit ordered the suspect be released. In its ruling, the Third Circuit specifically stated that § 1826(a) specifically states that “no period of such confinement shall exceed the life of 1) the court proceeding, or 2) the term of the grand jury including extensions, before which such refusal to comply with the court order occurred, but in no event shall such confinement exceed eighteen months.” The Third Circuit specifically found that the suspect qualified as a witness for purposes of § 1826(a) and it was of no consequence that the suspect was also a suspect in connection with other offenses. Therefore, because his detention exceeded eighteen months, the Third Circuit ordered his immediate release from custody. This is an important decision because it imposes a finite limit on the ability of the Government to hold someone for failing to comply with an order to decrypt an electronic device. Given the possibility of decades in prison for federal child pornography offenses, it may make sense to risk civil contempt rather than unlock a device that could support a federal prosecution.

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