If the government would like to force Jeffrey Feldman to decrypt the contents of the hard-drives and Dell computer found in his apartment, then they must offer him immunity and cannot use any of the information found on the devices as part of their case against him.
That is what the Electronic Frontier Foundation had to say in an Amicus Brief filed to a United States District Court yesterday, calling on the court not to fulfill the prosecution’s request to compel decryption from the defendant in the seemingly never-ending struggle to prove that forced device decryption is an act of self-incrimination and is protected by the Fifth Amendment.
During the course of a child pornography investigation, the FBI obtained a warrant to search Feldman’s Milwaukee, Wisc., apartment and all the computers found there. They seized 16 hard drives and found that nine of the drives contained encrypted content that the investigators could not decrypt on their own. The government then submitted an All Writs Act request to the U.S. District Court in the Eastern District of Wisconsin, asking Magistrate Judge William E. Callahan to compel Feldman to decrypt the drives. Callahan denied the request claiming that it would put Feldman at risk of being compelled to provide incriminating testimony against himself since the government had failed to prove with “reasonable particularity” that Feldman had “personal access to and control over the encrypted devices.”
Callahan would later reverse course after the government broke the encryption on one of the devices they seized in Feldman’s apartment. The plain-text contents of the cracked hard-drive revealed that it did indeed belong to Feldman, and therefore, Callahan determined that it was now a foregone conclusion that Feldman had control over all the other devices as well. In other words, since investigators found information linking the device to Feldman on one of the drives, there was no longer any doubt that he had control over all of them. Thus the act of providing the encryption key to the other hard drives would not count as an incriminating act because it alone would not prove that Feldman had access to and controlled the encrypted devices.
The Fifth Amendment, according to the EFF, is implicated anytime a defendant must reveal the contents of his or her own mind, the process of which is called an “act of production.” It is important to note in the context of this case that “A statement is incriminating if the answer either supports a conviction in a federal criminal case, or provides a “link in the chain of evidence” to lead to incriminating evidence, even if the statement itself is not inculpatory.” If, however, the government can prove with “reasonable particularity” that it already knows about the existence of the materials it is seeking and that the act of production wouldn’t provide them with anything they didn’t already know, then it can compel a person to reveal the contents of his or her mind without Fifth Amendment protection.
Basically, the EFF is arguing that the government must prove that the hard drives it seized from Feldman’s apartment do indeed belong to Feldman. The Fifth Amendment should and is designed to protect the Government from using the contents of Feldman’s mind to prove this fact. Defendants in similar cases have been justifiably compelled to hand over the unencrypted contents of hard drives that investigators could not decrypt on their own, but in these cases the prosecution found other means of proving that the devices in question belonged to the defendant before the defendant was forced to decrypt.
In this case, the EFF reasons, there is no such proof as of yet:
“In contrast, here the government is armed with no additional facts or admission by Mr. Feldman that he had access and control over these devices,” the brief reads. “That means the government failed to carry its burden of showing the facts to be revealed by forced decryption – namely Feldman’s access and control over the devices – was a foregone conclusion.”
Of course, there is still the matter of the one drive that the government did decrypt and on which they found information proving it belonged to Feldman. This is, after all, the event that caused the judge to change his mind. Still, the EFF claims that while the government has indeed proved that this device belongs to Feldman, that does not necessarily mean the others do as well.
“At best, the government has proven Mr. Feldman had ‘access and control’ over the one device it was able to decrypt. But the government has pointed to nothing to demonstrate with ‘reasonable certainty’ that Mr. Feldman had access and control to the remaining devices. Nor is there any indication that the government has proven with reasonable certainty that Mr. Feldman had exclusive access to the Dell computer where these devices purportedly were connected to at some point.”
The EFF declares that the government cannot prove that Feldman had access to and control over the devices without an admission from Feldman or some other act of proof. The court has two options, according the Amicus brief: it can either give up the request altogether or offer Feldman immunity that would prohibit the government from using both the fact the Feldman knows the password to the encrypted contents and the actual unencrypted contents of the drives against Feldman in any way during the case.