Compelling Access To Encrypted Information (Part VII)

As an update in a recent case in which the government obtained an order compelling in individual to provide access to decrypted information on seized hard drives, In the Matter of The Decryption of a Seized Data Storage System (EDWI May 21, 2013) (No. 13-M-449), the government reported that it was able to decrypt some but not all of the data which has been used in support of an arrest warrant in the case

The Federal Evidence Blog has been following the few cases so far addressing whether the Fifth Amendment may disallow efforts by the government to compel an individual to decrypt computer information. As one recent example, a court originally denied a government application to compel decryption under the Fifth Amendment, and then granted the ruling upon reconsidering additional information submitted in an ex parte application. See In the Matter of The Decryption of a Seized Data Storage System (EDWI May 21, 2013) (No. 13-M-449); see generally Compelling Access To Encrypted Information (Part II) (Jan. 30, 2012) (summarizing case). There is a new development in the case.

Originally, the government sought the order compelling decryption because "law enforcement agents are not able to examine the Subject Computer as commanded by the search warrants" and further exampination of the computer "in its current state to attempt access to its unencrypted contents, if it is possible at all, would require significant resources and may harm the Subject Computer." Application for Order, at 2, 4. The individual has yet to comply with the order. As his attorney noted in a recent filing: "Mr. Feldman has asserted and continues to assert his Fifth Amendment privilege against self-incrimination and against the government’s efforts to compel him to attempt to decrypt the drives the government says are encrypted. He will not voluntarily attempt to decrypt the drives." Response In Opposition To Government’s Motion To Stay Briefing Schedule (Aug. 14, 2013); see also Government’s Motion To Stay Briefing Schedule (Aug. 14, 2013).

Since the court's order, the government reported in public filings that it was able to decrypt some but not all of the files which revealed suspected child pornography. Based on this information and the continuing investigation, an arrest warrant has been obtained for the defendant. According to the arrest warrant affidavit:

[¶ 14] Agents were able to decrypt the contents of Encrypted Drive 1 and discovered approximately 707,307 files, of which approximately 500,000 appear to constitute either child pornography or child erotica. To date, approximately 22,182 files have been reviewed and were determined to be suspected child pornography. These files include videos depicting bondage and the sexual assault of infants, along with bestiality involving children.
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[¶ 17] ... After decrypting Encrypted Drive 1, agents were subsequently able to decrypt the contents of Encrypted Drive 2, and are still reviewing its contents. To date, they have reviewed less than one-third of the contents of Encrypted Drive 2, and have found that it contains approximately 600 video files of apparent child pornography, including videos depicting bondage and the sexual assault of infants, along with bestiality involving children....
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[¶ 21] Despite decrypting two external hard drives, 8.64 terabytes of data remain encrypted. A terabyte is approximately one trillion bytes, or sufficient storage capacity for approximately 300 hundred hours of video. Th.is encrypted data is present on seven hard drives seized from Feldman's residence.
...
[¶ 23] The investigation is ongoing and the FBI is still working on decrypting Feldman's remaining seven encrypted drives. In addition, numerous images that have been identified as suspected child pornography have been sent to the National Centerfor Missing and Exploited Children (NCMEC) to identify victims and determine whether any images depict unknown victims. Due to the sheer volume of images found to date, it is anticipated that this process will take several weeks to complete and could even take several months.

Complaint Affidavit, ¶¶ 14, 17, 21, 23.

Limited Appellate Review Options: Requiring An Exception To The Final Judgment Rule

Given the final judgment rule, under 28 U.S.C. § 1291 ("The courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States, ..., except where a direct review may be had in the Supreme Court."), appellate review is normally restricted. The Tenth Circuit declined to consider an interlocutory appeal to an order compelling production of decrypted information. See Fricosu v. United States, _ F.3d _ (10th Cir. Feb. 21, 2012) (No. 12-701) ("[W]e also note that even if the petition was construed as a notice of appeal, this court would lack jurisdiction to consider the resulting proceeding under any exception to our usual finality rules. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949).").

However, the Eleventh Circuit reviewed a compulsion order as an appeal from a judgment of civil contempt of an order granting limited immunity to decrypt hard drives. See In Re: Grand Jury Subpoena Duces Tecum Dated March 25, 2011 (Doe v. United States), 670 F.3d 1335 (11th Cir. Feb. 23, 2012) (Nos. 11-12268, 11-15421).

Recent Review Of Legal Issues

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 in the courts.

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