New opinion — compelling a person to unencrypt his computer wasn’t plain error

US v. Apple Macpro Computer — criminal — affirmance — Vanaskie

The government was investigating John Doe for accessing child pornography on the internet, so they searched his home and seized his cell phone and computer. But Doe’s computer hard drive was encrypted, and the government wasn’t able to access any illegal images stored there. So the government sought an order requiring Doe, essentially, to tell the government his password to unencrypt the computer drive, and the court granted the government’s request. When Doe did not provide his password, asserting that he could not remember it, the court found Doe in civil contempt and ordered him held until he complies. Doe appealed, arguing that it violated his Fifth Amendment right against self-incrimination to compel him to tell the government how to unencrypt his hard drive.

Today, the Third Circuit affirmed without squarely resolving how self-incrimination applies to encryption. Because Doe did not appeal from the district court order that rejected his Fifth Amendment claim, but instead later appealed from the contempt order, the court said its review of the Fifth Amendment was at most for plain error, and it found none. The court also affirmed the contempt order based on evidence tending to show that Doe was able to remember the hard drive password.

Joining Vanaskie were Jordan and Nygaard. Arguing counsel were Keith Donoghue of the EDPA Federal Community Defender for Doe, Mark Rumold of the Electronic Frontier Foundation for amicus curiae, and Nathan Judish for the government.

My prior coverage of the case is here and here, and Professor Orin Kerr’s commentary on today’s ruling is here.

 

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