TJOFLAT, Circuit Judge:
This is an appeal of a judgment of civil contempt. On April 7, 2011, John Doe was served with a subpoena duces tecum requiring him to appear before a Northern District of Florida grand jury and produce the unencrypted contents located on the hard drives of Doe's laptop computers and five external hard drives.
On April 19, 2011, the U.S. Attorney and Doe appeared before the district court.
After the hearing adjourned, Doe appeared before the grand jury and refused to decrypt the hard drives. The U.S. Attorney immediately moved the district court for an order requiring Doe to show cause why Doe should not be held in civil contempt. The court issued the requested order, requiring Doe to show cause for his refusal to decrypt the hard drives. Doe, responding, explained that he invoked his Fifth Amendment privilege against self-incrimination because the Government's use of the decrypted contents of the hard drives would constitute derivative use of his immunized testimony, use not protected by the district court's grant of immunity.
We review the district court's findings of relevant facts for clear error, see United States v. Doe, 465 U.S. 605, 613-14, 104 S.Ct. 1237, 1243, 79 L.Ed.2d 552 (1984) (stating that the Court would not overturn findings of fact unless they had no support in the record), and review the district court's application of the Fifth Amendment privilege de novo, United States v. Hernandez, 141 F.3d 1042, 1049 (11th Cir.1998). Part I briefly reviews the relevant factual background and procedural history of the case. Part II discusses
This case began with the lawful seizure of seven pieces of digital media during the course of a child pornography investigation. In March 2010, law enforcement officials began an investigation of an individual using the YouTube.com account [redacted] whom the Government suspected of sharing explicit materials involving underage girls. During the course of their investigation, officers from the Santa Rosa County (Florida) Sheriff's office obtained several internet protocol ("IP") addresses from which [redacted] accessed the internet. Three of these IP addresses were then traced to hotels. Following a review of the hotels' guest registries, law enforcement officers found that the sole common hotel registrant during the relevant times was Doe.
In October 2010, law enforcement officers tracked Doe to a hotel in California and applied for a warrant to search his room. A judge granted the application and issued a search warrant, allowing the officers to seize all digital media, as well as any encryption devices or codes necessary to access such media. The officers seized seven pieces of digital media: two laptops—a 320-gigabyte ("GB") Dell Studio laptop and a 160-GB laptop; and five external hard drives—a 1.5-terabyte ("TB") Seagate external drive, a 1-TB Western Digital MyPassport external drive, a 1-TB external drive, a 500-GB Western Digital external drive, a 500-GB SimpleTech external drive.
The grand jury subpoena issued because the forensic examiners were unable to view the encrypted portions of the drives. The subpoena required Doe to produce the "unencrypted contents" of the digital media, and "any and all containers or folders thereon." Doe informed the U.S. Attorney that compliance with the subpoena would violate his Fifth Amendment privilege against self-incrimination. It was in an attempt to avoid this constitutional issue that the U.S. Attorney requested that the district court grant Doe the limited act-of-production immunity.
Thus, the focus of the motion to show cause hearing on April 19, 2011, was, in essence, whether the Fifth Amendment would bar the Government from establishing before a petit jury—say, if Doe were indicted for possession of child pornography in violation of 18 U.S.C. § 2252—that the decrypted contents (child pornography) were Doe's because (1) the hard drives belonged to Doe (which was not in dispute), and (2) contained child pornography. Doe contended that the establishment of point (2) would constitute the derivative use of his immunized grand jury testimony. That is, by decrypting the contents, he would be testifying that he, as opposed to some other person, placed the contents on the hard drive, encrypted the
The critical testimony during the show cause hearing came from forensic examiner Timothy McCrohan. McCrohan testified that he cloned over 5 TB of data from the digital media devices—an "enormous amount of data." He also testified that over a million pieces of data could be stored on a typical 320-GB hard drive. McCrohan continued, "So when you're at five terabytes you're looking at 20 times that size. It could be in the multi-millions." Notably, McCrohan testified that the forensic examination indicated that the hard drives had been encrypted with a software program called "TrueCrypt." Essentially, TrueCrypt can make certain data inaccessible; in doing so, the program can create partitions within a hard drive so that even if one part of the hard drive is accessed, other parts of the hard drive remain secured. Because the hard drive was encrypted, the forensic examiners were unable to recover any data.
In his testimony on cross-examination by Doe, however, McCrohan conceded that, although encrypted, it was possible that the hard drives contain nothing. Doe asked McCrohan, "So if a forensic examiner were to look at an external hard drive and just see encryption, does the possibility exist that there actually is nothing on there other than encryption? In other words, if the volume was mounted, all you would see is blank. Does that possibility exist?" McCrohan responded: "Well, you would see random characters, but you wouldn't know necessarily whether it was blank."
The forensic analysis was able to identify two passwords, neither of which revealed any information when entered. When pressed by Doe to explain why investigators believed something may be hidden, McCrohan replied, "The scope of my examination didn't go that far." In response to further prodding, "What makes you think that there are still portions that have data[?]," McCrohan responded, "We couldn't get into them, so we can't make that call." Finally, when asked whether "random data is just random data," McCrohan concluded that "anything is possible." At the conclusion of the hearing, the district court held Doe in contempt and committed him to the custody of the United States Marshal.
We turn now to the merits of Doe's appeal. In compelling Doe to produce the unencrypted contents of the hard drives and then in holding him in contempt for failing to do so, the district court concluded that the Government's use of the unencrypted contents in a prosecution against Doe would not constitute the derivative use of compelled testimony protected by the Fifth Amendment privilege against self-incrimination. This is so, the court thought, because Doe's decryption and production of the hard drives would not constitute "testimony." And although that was the Government's view as well, the Government nonetheless requested act-of-production immunity.
For the reasons that follow, we hold that Doe's decryption and production of the hard drives' contents would trigger Fifth Amendment protection because it would be testimonial, and that such protection would extend to the Government's use of the drives' contents. The district court therefore erred in two respects. First, it erred in concluding that Doe's act of decryption and production would not constitute testimony. Second, in granting Doe immunity, it erred in limiting his immunity, under 18 U.S.C. §§ 6002 and 6003, to the Government's use of his act of decryption and production, but allowing the Government derivative use of the evidence such act disclosed.
"[I]n the context of a grand jury inquiry ... `the public ... has a right to every man's evidence,' except for those persons protected by a constitutional, common-law, or statutory privilege." United States v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974) (quoting United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1949)). The Fifth Amendment provides, however, that no person "shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. Thus, the privilege against self-incrimination carves out a significant exception to the government's ability to obtain every man's evidence.
An individual must show three things to fall within the ambit of the Fifth Amendment: (1) compulsion, (2) a testimonial communication or act, and (3) incrimination. See United States v. Ghidoni, 732 F.2d 814, 816 (11th Cir.1984) (citing United States v. Authement, 607 F.2d 1129, 1131 (5th Cir.1979) (per curiam)).
The crux of the dispute here is whether the Government sought "testimony" within the meaning of the Fifth Amendment. The Government claims that it did not, that all it wanted Doe to do was merely to hand over pre-existing and voluntarily created files, not to testify. See United States v. Hubbell, 530 U.S. 27, 35-36, 120 S.Ct. 2037, 2043, 147 L.Ed.2d 24 (2000) (noting that it is a "settled proposition that a person may be required to produce specific documents even though they contain incriminating assertions of fact or belief because the creation of those documents was not `compelled' within the meaning of the privilege"). We agree— the files, if there are any at all in the hidden portions of the hard drives, are not themselves testimonial.
Whether the drives' contents are testimonial, however, is not the issue. What is at issue is whether the act of production may have some testimonial quality sufficient to trigger Fifth Amendment protection when the production explicitly or implicitly conveys some statement of fact. See Fisher v. United States, 425 U.S. 391, 410, 96 S.Ct. 1569, 1581, 48 L.Ed.2d 39 (1976) ("The act of producing evidence in response to a subpoena nevertheless has communicative aspects of its own, wholly aside from the contents of the papers produced."). Thus, we focus on whether Doe's act of decryption and production would have been testimonial.
Two seminal cases frame our analysis: Fisher v. United States and United States v. Hubbell. We start our discussion with this background.
In Fisher, the Court considered two Internal Revenue Service ("IRS") investigations, one in the Third Circuit and one in the Fifth Circuit, where the IRS sought to obtain voluntarily prepared documents the taxpayers had given to their attorneys. Fisher, 425 U.S. at 393-94, 96 S.Ct. at 1572. In each investigation, the IRS issued a summons requiring the taxpayer's attorney to hand over the documents, which included an accountant's work papers, copies of the taxpayer's returns, and copies of other reports and correspondence. Id. at 394, 96 S.Ct. at 1572-73. When the attorney refused to comply with the summons on the ground that the documents were privileged and, moreover, protected by his Fifth Amendment privilege against self-incrimination, the IRS brought an enforcement action in district court. Id. at 395, 96 S.Ct. at 1573; see also
After granting certiorari, the Supreme Court made short shrift of the attorneys' argument that the Fifth Amendment protected them from producing the documents in their possession, holding that they could not invoke the privilege. 425 U.S. at 397-402, 96 S.Ct. at 1574-76. Turning to the taxpayers' privilege, the Court treated the taxpayers as retaining possession of the documents.
Id. (quoting In re Harris, 221 U.S. 274, 279, 31 S.Ct. 557, 558, 55 L.Ed. 732 (1911) (citation omitted)).
Twenty-four years after Fisher, the Court decided Hubbell. In Hubbell, a grand jury investigating the activities of Whitewater Development Corporation issued a subpoena duces tecum requiring Hubbell to provide eleven categories of documents. 530 U.S. at 30-31, 120 S.Ct. at 2040. Hubbell invoked the Fifth Amendment privilege, so the Government obtained a district court order granting Hubbell § 6002 immunity. Id. at 31, 120 S.Ct. at 2040. Hubbell complied with the subpoena and turned over 13,120 pages of documents. Id.
The grand jury subsequently returned a ten-count indictment charging Hubbell with several federal crimes. Id. at 31, 120 S.Ct. at 2041. Asserting that the Government could not convict him without the immunized documents, Hubbell moved the district court to dismiss the indictment. Id. at 31-33, 120 S.Ct. at 2041. The court held a hearing, found that the Government could not show that it had knowledge of the contents of the documents from a source independent of the documents themselves, and dismissed the indictment. The Government appealed the dismissal. Id. at 31-32, 120 S.Ct. at 2041.
The Supreme Court granted a writ of certiorari. Id. at 34, 120 S.Ct. at 2042. The Court held that Hubbell's act of production was sufficiently testimonial to trigger Fifth Amendment protection, as knowledge of the implicit testimonial facts associated with his act of production was not a foregone conclusion. Id. at 44-45, 120 S.Ct. at 2047-48. In so holding, the Court distinguished Fisher:
Id. at 44-45, 120 S.Ct. at 2048. In Fisher, therefore, the act of production was not testimonial because the Government had knowledge of each fact that had the potential of being testimonial. As a contrast, the Court in Hubbell found there was testimony in the production of the documents since the Government had no knowledge of the existence of documents, other than a suspicion that documents likely existed and, if they did exist, that they would fall within the broad categories requested.
Drawing out the key principles from the Court's two decisions, an act of production can be testimonial when that act conveys some explicit or implicit statement of fact that certain materials exist, are in the subpoenaed individual's possession or control, or are authentic. See id. at 36 & n. 19, 120 S.Ct. at 2043 & n. 19. The touchstone of whether an act of production is testimonial is whether the government compels the individual to use "the contents of his own mind" to explicitly or implicitly communicate some statement of fact. Curcio v. United States, 354 U.S. 118, 128, 77 S.Ct. 1145, 1151, 1 L.Ed.2d 1225 (1957).
Put another way, the Court has marked out two ways in which an act of production is not testimonial.
With this framework in hand, we turn to the facts of this case. We hold that the act of Doe's decryption and production of the contents of the hard drives would sufficiently implicate the Fifth Amendment privilege. We reach this holding by concluding that (1) Doe's decryption and production of the contents of the drives would be testimonial, not merely a physical act; and (2) the explicit and implicit factual communications associated with the decryption and production are not foregone conclusions.
First, the decryption and production of the hard drives would require the use of the contents of Doe's mind and could not be fairly characterized as a physical act that would be nontestimonial in nature. We conclude that 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.
We are unpersuaded by the Government's derivation of the key/combination analogy in arguing that Doe's production of the unencrypted files would be nothing more than a physical nontestimonial transfer. The Government attempts to avoid the analogy by arguing that it does not seek the combination or the key, but rather the contents. This argument badly misses the mark. In Fisher, where the analogy was born, and again in Hubbell, the Government never sought the "key" or the "combination" to the safe for its own sake; rather, the Government sought the files being withheld, just as the Government does here. Hubbell, 530 U.S. at 38, 120 S.Ct. at 2044 (trying to compel production of documents); Fisher v. United States, 425 U.S. at 394-95, 96 S.Ct. at 1572-73 (seeking to access contents possessed by attorneys). Requiring Doe to use a decryption password is most certainly more akin to requiring the production of a combination because both demand the use of the contents of the mind, and the production is accompanied by the implied factual statements noted above that could prove to be incriminatory. See Hubbell, 530 U.S. at 43, 120 S.Ct. at 2047. Hence, we conclude that what the Government seeks to compel in this case, the decryption and production of the contents of the hard drives, is testimonial in character.
Moving to the second point, the question becomes whether the purported testimony is a "foregone conclusion." We think not. Nothing in the record before us reveals that the Government knows whether any files exist and are located on the hard drives; what's more, nothing in the record illustrates that the Government knows with reasonable particularity that Doe is even capable of accessing the encrypted portions of the drives.
To support its position, the Government points to McCrohan's testimony. It states in its answer brief that "[h]ere, the government knows of the `existence' and `whereabouts' of the decrypted records it has subpoenaed because the government already
To be fair, the Government has shown that the combined storage space of the drives could contain files that number well into the millions. And the Government has also shown that the drives are encrypted. The Government has not shown, however, that the drives actually contain any files, nor has it shown which of the estimated twenty million files the drives are capable of holding may prove useful. The Government has emphasized at every stage of the proceedings in this case that the forensic analysis showed random characters. But random characters are not files; because the TrueCrypt program displays random characters if there are files and if there is empty space, we simply do not know what, if anything, was hidden based on the facts before us. It is not enough for the Government to argue that the encrypted drives are capable of storing vast amounts of data, some of which may be incriminating. In short, the Government physically possesses the media devices, but it does not know what, if anything, is held on the encrypted drives.
In sum, we think this case is far closer to the Hubbell end of the spectrum than it is to the Fisher end. As in Hubbell, "the Government has not shown that it had any prior knowledge of either the existence or the whereabouts of the [files]" that it seeks to compel Doe to produce. Hubbell, 530 U.S. at 45, 120 S.Ct. at 2048. In Fisher, the Government knew exactly what documents it sought to be produced, knew that they were in the possession of the attorney, and knew that they were prepared by an accountant. 425 U.S. at 411-12, 96 S.Ct. at 1581. Here, the Government has not shown that it possessed even a remotely similar level of knowledge as to the files on the hard drives at the time it attempted to compel production from Doe. Case law from the Supreme Court does not demand that the Government identify exactly the documents it seeks, but it does require some specificity in its requests—categorical requests for documents the Government anticipates are likely to exist simply will not suffice. See Hubbell, 530 U.S. at 45, 120 S.Ct. at 2048 ("The Government cannot cure this [lack of prior knowledge] through the over broad argument that a
The Government tries to analogize this case to In re Boucher, No. 2:06-mj-91, 2009 WL 424718 (D.Vt. Feb. 19, 2009). The facts of Boucher appear to be somewhat similar to the facts of this case, but we do not find the Government's analogy persuasive.
The Government correctly notes that Boucher did not turn on the fact that the Government knew the contents of the file it sought, id. at *3; Fisher and Hubbell, though, still require that the Government show its knowledge that the files exist. Thus, while in Boucher it was irrelevant that the Government knew what was contained in the file "2yo getting raped during diaper change," it was crucial that
In short, we conclude that Doe would certainly use the contents of his mind to incriminate himself or lead the Government to evidence that would incriminate him if he complied with the district court's order. Moreover, the Government has failed to show any basis, let alone shown a basis with reasonable particularity, for its belief that encrypted files exist on the drives, that Doe has access to those files, or that he is capable of decrypting the files. The "foregone conclusion" doctrine does not apply under these facts.
The Fifth Amendment protects Doe's refusal to decrypt and produce the contents of the media devices because the act of decryption and production would be testimonial, and because the Government cannot show that the "foregone conclusion" doctrine applies.
The district court still could have compelled Doe to turn over the unencrypted contents—and held him in contempt if he refused to do so—had the Government offered and the district court granted Doe
In evaluating the immunity Doe received, we must look beyond the act-of-production label and ask this question: what conduct was actually immunized and what use would the Government make of the evidence derived from such conduct in a future prosecution? The Government stated in its letter served on Doe on April 7, 2011, and before the district court on April 19, 2011, that it would not use Doe's act of production against him in a future prosecution; but it would use the contents of the unencrypted drives against him.
In the seminal case on point, Kastigar v. United States, the Court stated:
Kastigar v. United States, 406 U.S. 441, 449, 92 S.Ct. 1653, 1659, 32 L.Ed.2d 212 (1972) (footnote and citation omitted) (citing McCarthy v. Arndstein, 266 U.S. 34, 42, 45 S.Ct. 16, 17, 69 L.Ed. 158 (1924)). The Court then held that § 6002 "immunity from use and derivative use is coextensive with the scope of the [Fifth Amendment] privilege against self-incrimination." Id. at 453, 92 S.Ct. at 1661. In so holding, the Court emphasized that such immunity "prohibits the prosecutorial authorities from using the compelled testimony in any respect." Id.
Supreme Court precedent is clear: Use and derivative-use immunity establishes the critical threshold to overcome an individual's invocation of the Fifth Amendment privilege against self-incrimination. No more protection is necessary; no less protection is sufficient.
The Government gave no such immunity in this case. In essence, the Government attempted to immunize the testimony itself, treating everything else as fair game. But for the reasons we just noted, the Government cannot obtain immunity only for the act of production and then seek to introduce the contents of the production, regardless of whether those contents are characterized as nontestimonial evidence, because doing so would allow the use of evidence derived from the original testimonial
The Court in Hubbell expressly rejected the "manna from heaven" theory, which contended that if the Government omitted any description of how the documents were obtained, it would be as if they magically appeared on the courthouse steps and the Government could use the documents themselves.
To conclude, because Doe's act of production would have testimonial aspects to it, an order to compel him to produce the unencrypted contents of the drives would require immunity coextensive with the Fifth Amendment (and § 6002). Immunity coextensive with the Fifth Amendment requires both use and derivative-use immunity. The Government's offer of act-of-production immunity clearly could not provide the requisite protection because it would allow the Government to use evidence derived from the immunized testimony. Thus, because the immunity offered here was not coextensive with the Fifth Amendment, Doe could not be compelled to decrypt the drives.
We hold that Doe properly invoked the Fifth Amendment privilege. In response, the Government chose not give him the immunity the Fifth Amendment and 18
U.S. Const. amend. V.
Id. at 405, 96 S.Ct. at 1578.
Squeezed down to its core, the Government in this case tried to split 18 U.S.C. § 6002 in half—it agreed that "no testimony or other information compelled under the order" could be used against Doe, in light of the act-of-production immunity, but refused to immunize "any information directly or indirectly derived from such testimony or other information." Under our reading of 18 U.S.C. § 6002, there does not appear to be any provision that allows the Government to selectively pick and choose which sentences of the immunity statute to employ. Given the plain language of the statute, read in conjunction with 18 U.S.C. § 6003, the Government appears to have a choice: give § 6002 immunity or do not give § 6002 immunity. Putting aside whether it is even possible for the Government to manipulate § 6002 in the manner it did, we explain infra why this attempt was misguided in this case.
Kastigar, 406 U.S. at 453, 92 S.Ct. at 1661 (footnote omitted) (quoting Ullmann v. United States, 350 U.S. 422, 438-39, 76 S.Ct. 497, 507, 100 L.Ed. 511 (1956)).
Id. at 321 (quoting Kastigar, 406 U.S. at 460, 92 S.Ct. at 1665). We think this is analogous to the case here. Essentially the Government asks that we compel Doe to provide incriminating testimony—producing the unencrypted documents. The Government then argues that it will not use the compelled testimony. The problem, though, is that the contents of the drives would still be barred because they would be "directly or indirectly derived from" compelled testimony. Kastigar, 406 U.S. at 453, 92 S.Ct. at 1661 (internal quotation marks omitted). Thus, because the protection offered by the act-of-production immunity is not coextensive with the Fifth Amendment, Doe was within his right to refuse to decrypt the drives and the court cannot compel him to do otherwise.
Hubbell, 530 U.S. at 42, 120 S.Ct. at 2046-47.