Fifth Amendment Act of Production Privilege and Encrypted Data Files

In In re: Grand Jury Subpoena Duces Tecum Dated March 25, 2011, ___ F.3d ___, 2012 U.S. App. LEXIS 3894 (11th Cir. 2012), enhanced opinion available to subscribers with core terms, case links, and Shepard's, (Non-subscribers can download the unenhanced official opinion of In re: Grand Jury Subpoena Duces Tecum Dated March 25, 2011 issued by the Eleventh Circuit), the Eleventh Circuit decided an important Fifth Amendment case -- whether the compelled witness has a Fifth Amendment privilege as to any "testimony" inherent in the witness' compelled decryption of his hard disk.  This case was not a tax case.  Rather, the underlying crime investigated related to child pornography.  But the implications in tax cases are apparent, since tax cases often are based on access to computer files.  Indeed, one of the first exercises in the IRS gaining access to computers in criminal tax investigations (whether by search warrant or otherwise) is to image the disks for access and use in the investigation.  Obviously, access and use are impeded by encryption.

Computer Hard Drive

Readers will recall that, although there is not normally a Fifth Amendment privilege as to any documents (including computer files) which a witness has voluntarily prepared, the witness being compelled to produce documents has a Fifth Amendment privilege with respect to testimony inherent in the compelled act of producing those documents (or computer files).  This embellishment on the Fifth Amendment is referred to as the Act of Production doctrine that was developed in two important tax cases -- Fisher v. United States, 425 U.S. 391 (1976); and United States v. Hubbell, 530 U.S. 27 (2000).


The Eleventh Circuit ultimately concluded that the quality of the Government's showing was insufficient to satisfy the foregone conclusion test.  Please note particularly, the Court's footnoted agreement with two earlier cases.  For all of my blogs on the foregone conclusion doctrine, see here.


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