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The appropriate standard is instead clear and convincing evidence. This places a high burden on the government to demonstrate that the defendant's ability to decrypt the device at issue is a foregone conclusion. But a high burden is appropriate given that the "foregone conclusion" rule is an exception to the Fifth Amendment's otherwise jealous protection of the privilege against giving self-incriminating testimony.
On April 26, 2017, a magistrate judge authorized a warrant for the FBI to search a residence believed to be inhabited by Ryan Michael Spencer. Specifically, the warrant authorized the search of the premises and any computers, storage media, routers, modems, and network equipment contained within, as well as Spencer himself, for evidence of child pornography. The FBI searched the residence and seized 12 electronic media items. It determined that some of these contained child pornography. However, several of the devices were encrypted, and their contents were therefore inaccessible. The United States sought an order under the All Writs Act, 28 U.S.C. § 1651, compelling Spencer to decrypt three of these devices: a smartphone, a laptop, and an external hard drive. Spencer admitted ownership of the smartphone and laptop, and provided passwords to bypass the lock screens (though not to decrypt portions of the devices' hard drives). The external hard drive was seized from the same desk as the laptop. Spencer said he owned a hard drive matching the description of the one seized, and that he had encrypted the hard drive using the same encryption software as that found on the recovered drive. The magistrate judge granted the government's application on March 20, 2018, ordering Spencer to aid in decrypting the three devices. Spencer filed a motion for relief from the order on April 16.
Has the government shown by clear and convincing evidence that Spencer's ability to decrypt the three devices is a foregone conclusion?
The court held that the government has shown by clear and convincing evidence that Spencer's ability to decrypt the three devices is a foregone conclusion. All three devices were found in Spencer's residence. Spencer has conceded that he owned the phone and laptop, and has provided the login passwords to both. Moreover, he has conceded that he purchased and encrypted an external hard drive matching the description of the one found by the government. This was sufficient for the government to meet its evidentiary burden. The government may therefore compel Spencer to decrypt the devices. Once Spencer decrypts the devices, however, the government may not make direct use of the evidence that he has done so. If it really is a foregone conclusion that he has the ability to do so, such that his decryption of the device is not testimonial, then the government of course should have no use for evidence of the act of production itself.