Compelling Access To Encrypted Information (Part VI)

After initially denying the government's application to compel decryption under the Fifth Amendment, a court in the Eastern District of Wisconsin receives an ex parte application to reconsider the prior ruling and grants the request, in In the Matter of The Decryption of a Seized Data Storage System (EDWI May 21, 2013) (No. 13-M-449)

As previously noted in the Federal Evidence Blog, there are only a handful of cases that have considered whether the Fifth Amendment may disallow efforts by the government to compel an individual to decrypt computer information. See generally Encryption Blog Posts. The latest rulings on this issue come from the Eastern District of Wisconsin. Once again, the result has turned on application of the “foregone conclusion” doctrine under Fisher v. United States, 425 U.S. 391, 411 (1976) ("When the existence of documents is a foregone conclusion, the [party]'s concession that he has the documents would add little or nothing to the government's information, and the question is not of testimony but of surrender.").

In the case, in January 2013, FBI agents executed a search warrant at the residence of Jeffrey Feldman as part of an investigation involving child pornography. Sixteen storage devices were seized, nine of which were encrypted. On April 3, 2013, the government submitted an application under the All Writs Act, 28 U.S.C. § 1651, for an order to compel Feldman to “assist in the execution of a federal search warrant by providing federal law enforcement agents a decrypted version of the contents of his encrypted data storage system, previously seized and authorized for search under a federal search warrant.” See Application Under the All Writs act Requiring Jeffrey Feldman to Assist in the Execution of Previously-Issued Search Warrant (Apr. 3, 2013). According to the application, out of a total of 19.56 terabytes of seized data, 15.64 terabytes (about 80 percent) were encrypted.

United States Magistratre Judge William E. Callahan, Jr. denied the application on April 19, 2013. After reviewing other cases considering application of the Fifth Amendment in similar contexts, the ruling explained:

This is a close call, but I conclude that Feldman’s act of production, which would necessarily require his using a password of some type to decrypt the storage device, would be tantamount to telling the government something it does not already know with “reasonably particularity”—namely, that Feldman has personal access to and control over the encrypted storage devices. Accordingly, in my opinion, Fifth Amendment protection is available to Feldman. Stated another way, ordering Feldman to decrypt the storage devices would be in violation of his Fifth Amendment right against compelled self-incrimination.

Order Denying Application to Compel Decryption, at 9 (EDWI Apr. 19, 2013) (No. 13-M-449).

After the denial of its application, on May 16, 2013, "the government presented an ex parte request for reconsideration of its application, based on the discovery of new information." As the court ruling summarized:

In particular, the government submitted a supplemental affidavit of FBI Special Agent Brett Banner (“Banner”), attesting to the following facts:

b. Since April 19, 2013, the FBI has continued to devote substantial resources to attempting to decrypt Feldman’s storage system. Recently, the FBI was able to decrypt and access a small part of Feldman’s storage system, namely a single hard drive. Unfortunately, the vast majority of Feldman’s storage system remains encrypted.

c. The decrypted part of Feldman’s storage system contains an intricate electronic folder structure comprised of approximately 6,712 folders and subfolders. In these folders, agents found approximately 707,307 files. Among those files were numerous files which constitute child pornography.

d. In addition to numerous files of child pornography, the decrypted part of Feldman’s storage system contains detailed personal financial records and
documents belonging to Feldman.

e. The decrypted part of Feldman’s storage system contains dozens of personal photographs of Feldman.

f. On May 9, 2013, [Banner] interviewed Todd Vance (hereinafter “Vance”), software development manager at Rockwell Automation, where Feldman works. Vance informed [Banner] that Feldman is a competent software developer who could have learned how to use encryption. (Banner Supp. Aff. ¶ 2.) The government contends that such facts, combined with those set forth in Banner’s original affidavit, render Feldman’s access to and control over the encrypted storage devices a “foregone conclusion.”

Based on this new information, the court granted the application. As the court explained:

I agree. To repeat, the encrypted storage devices were found in Feldman’s residence, where he has admittedly lived alone for the past 15 years. In addition, the unencrypted Dell computer, which showed connections to the encrypted storage devices, has a login screen with only one username, “Jeff.”
And most significantly, the recently decrypted portion of the storage system contains personal financial documents and photographs clearly belonging to Feldman, whom the court has already found to be capable of using encryption. Such being the case, the government has now persuaded me that it is a “foregone conclusion” that Feldman has access to and control over the subject encrypted storage devices. Thus, under the current state of the law as more particularly discussed in the court’s April 19 Decision and Order, Fifth Amendment protection is no longer available to Feldman with respect to the contents of the encrypted storage devices. Accordingly, the government’s application for an order under the All Writs Act will be granted.

Order Granting Ex Parte Request for Reconsideration of the United States's Application under the All Writs Act, at 3-4 (EDWI May 21, 2013).

The court ordered Feldman to "assist law enforcement agents in the examination of" nine hard drives. By June 4, 2013, the court gave Feldman the option to either:

(1) meet with law enforcement agents who currently maintain custody of the above identified storage devices and, without being observed by law enforcement agents or by counsel for the United States of America, enter the appropriate password or passwords into forensic copies of the above-identified storage devices so as to decrypt those devices and allow law enforcement personnel to continue their examination of the files contained therein; or (2) take any actions agreed upon with law enforcement agents and with counsel for the United States of America for the purpose of, and with the result of, making available for their examination a decrypted copy of the data that exists in each of the above-identified storage devices.

Order Granting Ex Parte Request for Reconsideration of the United States's Application under the All Writs Act, at 3-4 (EDWI May 21, 2013).

In the end, the scope of the Fifth Amendment turned on the foregone conclusion exception. This case represents the latest ruling on this issue.

Last year, the Federal Evidence Review, Evidence Viewpoints® featured articles by two practitioners regarding the Fifth Amendment and encrypted computer files. See Chet Kaufman, "Decryption As Privileged Testimony Under The Fifth Amendment," 9 Fed. Evid. Rev. 801-08 (Aug. 2012); James Silver, "Decoding Encryption for Litigators," 9 Fed. Evid. Rev. 809-14 (Aug. 2012) (a federal prosecutor and defense attorney offer their perspectives on the extent that the government may compel an individual to provide a password to encrypted computer files under the Fifth Amendment). We will continue to monitor developments on this issue as it emerges in the courts.

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