The “foregone conclusion” exception to assertions of privilege against self-incrimination against orders to produce/ When testimonial aspects of electronic devices are a foregone conclusion, privilege against self-incrimination is not a shield against order providing passwords to provide access to them

U.S. v. Apple Macpro Computer, No. 15-3537 (3d Cir, 3/20/2017)

The Third Circuit affirmed a magistrate judge’s order under the All Writs Act compelling the owner of computers and accessory hard drives to provide passwords to enable the government to view child pornography images analysis of the devices indicated were present. The ubiquitous John Doe’s computers, hard drives, and 2 iPhones were seized by state authorities investigating child pornography. Forensic investigation revealed the existence of filenames indicative of the presence of child pornography. Doe’s sister also told investigators that Doe had shown her hundreds of images of child pornography on his computer and hard drives. Doe provided the password to an iPhone that had no offending images, but not to the other devices. The government applied for and received from the magistrate judge an order pursuant to the All Writs Act requiring Doe to provide the passwords. Doe’s motion to quash the order was denied, and he did not appeal. (No explanation is given for that failure. Judging from who very experienced and competent counsel was, the likely explanation that occurs to me is a client who did not tell his lawyer how to contact him.) Doe showed up to comply with the order, and provided the passwords to the other iPhone which yielded a number of illegal images, but claimed to forget the passwords to the hard drives, making several failed attempts to open them. The government thought Doe was lying, so it sought a contempt order form the District Court. Doe offered no evidence at the hearing, and he was held in contempt, and appealed.

The Court overruled Doe’s procedural objections to the order. On his claim that the order violated his privilege against self-incrimination, which, because of Doe’s failure to preserve it by not appealing the magistrate judge’s refusal to quash the order to provide the passwords, was reviewed under a standard of review more deferential to the district court than would have been the case had the objection been preserved, the Court found that while passwords to electronic devices can be protected by the 5th Amendment, this case was subject to the “foregone conclusion” exception to the right against self-incrimination. “Under this rule, the Fifth Amendment does not protect an act of production when any potentially testimonial component of the act of production—such as the existence, custody, and authenticity of evidence—is a “foregone conclusion” that “adds little or nothing to the sum total of the Government’s information.” Id. For the rule to apply, the Government must be able to “describe with reasonable particularity” the documents or evidence it seeks to compel.” (Citations omitted.) In this case it could. Moreover, Doe, when the police initially took his devices, said that he would not give the police his password because he did not want them looking at his computer— he did not say that he forgot his passwords.

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