In RE: GRAND JURY SUBPOENA DUCES TECUM DATED MARCH 25, 2011 UNITED STATES OF AMERICA, v. JOHN DOE, Appellant, 2012 WL 579433, Nos. 11–12268 & 11–15421, is a decision of the United States Court of Appeals, Eleventh Circuit (February 23, 2012) in an appeal of a judgment of civil contempt in the United States District Court for the Northern District of Florida.
“John Doe” was served with a subpoena duces tecum requiring him to appear before grand jury in a child pornography investigation and produce the unencrypted contents located on the hard drives of Doe’s previously seized laptop computers and five external hard drives. The contents of the drives were encrypted. The subpoena required Doe to decrypt and produce the contents. Doe informed the United States Attorney that, when he appeared before the grand jury, he would invoke his Fifth Amendment privilege against self-incrimination and refuse to comply with the subpoena. The Attorney General, authorized the U.S. Attorney to apply to the district court for an order that would grant Doe immunity limited to the use of Doe’s act of production of the unencrypted contents of the hard drives. That is, Doe’s immunity would not extend to the Government’s derivative use of contents of the drives as evidence against him in a criminal prosecution. The court accepted the U.S. Attorney’s position regarding the scope of the immunity to give Doe and granted the requested order.
However, 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. Doe 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. The court rejected Doe’s explanations, adjudged him in contempt of court, and ordered him incarcerated.
The Court of Appeals held that the district court had erroneously concluded that Doe was not protected by the Fifth Amendment in his refusal to comply with the court order because, 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 contents, and could retrieve and examine them whenever he wished.
What was at issue was 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. 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. 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. Furthermore, even if the decryption and production of the contents of the hard drives themselves were not incriminatory, they were a “link in the chain of evidence” that was designed to lead to incriminating evidence, and this was sufficient to invoke the Fifth Amendment privilege.
Therefore, the Fifth Amendment protects the defendant’s refusal to decrypt and produce the contents of the media devices as the act of decryption and production would have been testimonial.