Whether the government can force a suspect in a criminal investigation to provide the password to a computer or cell phone is an issue which frequently comes up in cases involving illegal pornographic material and other computer crimes. As a general rule, the Fifth Amendment provides the right against self-incrimination, meaning the government cannot compel a suspect or criminal defendant to say something which could lead to criminal liability. However, there are a number of exceptions to this blanket rule.
Today, the United States Court of Appeals for the Third Circuit held that in at least some circumstances, the police may obtain a court order requiring an individual to produce the password to a computer, hard drive, or cell phone. In United States v. Apple MacPro Computer, the Third Circuit upheld a contempt citation issued against a suspect (John Doe) who was being investigated for child pornography due to the Doe’s refusal to produce the password to certain hard drives which investigators recovered pursuant to a search warrant.
The procedural history of the case is a little bit convoluted, but the facts are fairly straight-forward. During a child pornography investigation, Delaware County investigators executed a search warrant on Doe’s residence. They recovered a number of phones, computers, and hard drives. Federal agents subsequently obtained a search warrant to examine the seized devices. Doe provided the password for one of the phones, but he refused to provide the passwords to various other devices. Forensic examination of one of Doe’s computers showed evidence that the computer had been used to access child pornography, but investigators were not able to view the full contents of the computer without the password because of encryption on the device.
In addition to seizing and examining the computers, the Delaware County investigators interviewed Doe’s sister. Doe’s sister confirmed that she had previously lived with Doe and Doe had actually shown her hundreds of images of child pornography on the encrypted hard drives. She also told investigators that Doe had videos of children engaged in sex acts on the devices.
Based on this showing, the federal investigators obtained an order under the All Writs Act compelling Doe to provide the relevant passwords. The All Writs Act is a relatively obscure federal statute which gained notoriety during the investigation of the San Bernadino terrorist attack when the FBI sought to compel Apple to unlock the attacker’s iPhone. It 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.” Under the Act, federal courts may issue orders “as may be necessary or appropriate to effective and prevent the frustration of” previously issued orders in cases in which the court already had jurisdiction.
Doe filed a Motion to Quash the order, arguing that the order violated his Fifth Amendment rights against self-incrimination. The federal court denied the Motion to Quash and directed Doe to unlock the devices for the investigators. Doe did not appeal, but he refused to unlock some of the devices, claiming that he had forgotten the passwords. He was eventually held in contempt by the District Court, and the Court ordered that he remain in federal custody until he was willing to unlock the devices.
On appeal, the Third Circuit affirmed the District Court’s ruling. Due to the unusual procedural posture of the case, the Third Circuit applied a highly deferential plain error standard of review to the District Court’s decision. First, the Third Circuit panel found that the District Court had properly issued the order under the All Writs Act. Second, the Third Circuit agreed that ordering Doe to unlock the phone would not violate his Fifth Amendment rights because of the “foregone conclusion” exception to the Fifth Amendment. Noting that the Fifth Amendment applies only when the accused is compelled to make a testimonial communication that is incriminating, the Third Circuit recognized that the mere act of producing evidence such as a physical object or some type of records in response to a subpoena or court order can be incriminating because the act of production concedes the existence of the evidence and the possession and control thereof by the defendant. In that situation, the Fifth Amendment applies and would prevent compelled production of evidence.
However, there is also a “foregone conclusion” exception. The Fifth Amendment does not protect an act of production when the existence, custody, and authenticity of the evidence is a “foregone conclusion” that “adds little or nothing to the sum total of the Government’s information.” Thus, because the government could prove through the forensic examination of the devices and the testimony of Doe’s sister that 1) the devices existed and the Government already had custody of them, 2) Doe possessed, accessed, and owned all the devices, and 3) there was child pornography on the devices, the foregone conclusion doctrine applied. Therefore, the Third Circuit affirmed the District Court’s finding of contempt.
As the case makes clear, the issue of whether a suspect or criminal defendant can be compelled to produce a password is not totally settled, and it depends heavily on the facts involved. In cases where the government can prove that the defendant had ownership of the devices and used them to view child pornography or that they contain some other critical evidence, the government may be able to punish a defendant who refuses to unlock the device. However, in many cases, this will be a difficult showing for the government to make as the government will not often have witnesses like Doe’s sister who observed the defendant viewing the child pornography or damaging admissions from the defendant about who owned the devices. Likewise, it is very important that the government was able to determine that the devices contained contraband even on the unencrypted portions of the drives.
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