Third Circuit Sidesteps Fifth Amendment in Forced Decryption Decision

The United States Court of Appeals for the Third Circuit handed down its decision in United States v. Apple Mac Pro Computer earlier this week.  The case involves a former Philadelphia police officer, Francis Rawls, who was being investigated for child pornography.  Mr. Rawls refused to decrypt two hard drives that the government claimed contained child pornography.  Mr. Rawls argued that decrypting the hard drives was the equivalent to self-incrimination which would be a violation of the Fifth Amendment.  When Rawls chose not to comply with the orders, he was held in contempt and was jailed.

The Third Circuit made its decision without addressing the Fifth Amendment question, instead choosing to uphold the forced decryption under the All Writs Act.  While not providing subject matter jurisdiction itself, the Act was intended to aid courts in executing their existing jurisdiction. The court stated, “[T]he Magistrate Judge had subject matter jurisdiction under Federal Rule of Criminal Procedure 41 to issue a search warrant, and therefore had jurisdiction to issue an order under the All Writs Act that sought ‘to effectuate and prevent the frustration’ of that warrant.”

In upholding the Decryption Order under the All Writs Act, the Third Circuit sidestepped the Fifth Amendment issue.  Eventually, the Supreme Court will have to clarify whether forced decryption can be squared with the Fifth Amendment.  As Orin Kerr discussed, the Third Circuit provided some insight as to how the case may have been decided under the Fifth Amendment and the “foregone conclusion” doctrine. In a footnote, the Third Circuit suggests that the “foregone conclusion” analysis should not necessarily focus on whether the government knows the content of the devices.  Instead, the Court said, “a very sound argument can be made that the foregone conclusion doctrine properly focuses on whether the Government already knows the testimony that is implicit in the act of production.”  Kerr’s post explains that the footnote is dicta, but provides strong support for the government in future cases.  He further explained that this decision avoided a split between circuits.

The entire Third Circuit decision is included below.