The Third Circuit last week held oral arguments on whether an individual can be forced to decrypt a drive with incriminating information on it. The Fifth Amendment prohibits any person from bring “compelled in any criminal case to be a witness against himself.” The Third Circuit will hopefully recognize that being forced to decrypt information is just the kind of testimonial act that the Fifth Amendment prohibits.

In a forced decryption case there are two kinds of subpoenas that could be issued. The first compels the individual to turn over the encryption key or password. This isn’t the kind of subpoena in the Third Circuit case, but it is useful in looking at why this is also not allowed. The other kind of subpoena is to produce the documents themselves.

With a direct subpoena of the password the password itself isn’t incriminating, but the Supreme Court has held that that the Fifth Amendment also prevents compelling incriminating “information directly or indirectly derived from such testimony.” The Supreme Court “particularly emphasized the critical importance of protection against a future prosecution ‘based on knowledge and sources of information obtained from the compelled testimony.’ ” While the password itself isn’t incriminating it clearly provides the lead necessary to get incriminating information from the encrypted drives. Another close analogy that seems to apply was that the Supreme Court clearly prohibited compelling a person to disclose a combination to a safe.

The second type of subpoena, and the one in this case, seeks only the production of the documents supposedly encrypted on the hard drive. In this case, the order was to “produce” the whole hard drive in an “unencrypted state.” The production of documents is not usually considered testimonial (and therefore not protected by the Fifth Amendment) if the documents existence, location, and authenticity are a “foregone conclusion.” By being a foregone conclusion, no new information is given to the government by the defendant’s testimonial acts of turning over the document (showing his own knowledge of the document’s existence, location and authenticity).

The real problem with this second type of subpoena is that there is real question of if the documents subpoenaed actually exist even if they are encrypted on the hard drive. In the traditional safe analogy this isn’t a problem, we know the documents really exist inside the safe if only we could get at them. And so the compelling of the individual who can open the safe to do so and give us the documents isn’t testimonial (as long as they are not required to tell the government what the combination to the safe is). But in the case of encrypted documents, no plaintext or unencrypted documents actually exist at all when the subpoena was issued.

Now the potential defendant could use his password to decrypt the documents but this act of decryption itself is the testimonial act. Imagine if the government were to subpoena from a suspected murderer where they couldn’t find the body an order to “produce a document with the location of the body.” The creating of that document that doesn’t already exist is testimonial and cannot be compelled under the Fifth Amendment. An encrypted drive is like finding a piece of paper that the government cannot makes sense out of. Ordering the individual to use the personal knowledge in his mind (the password) to transform that document into one that makes sense for the government is testimonial because it is creating something that did not already exist in that form using the knowledge in his mind. Forced decryption should not be allowed for the same reason. Hopefully the Third Circuit in United States v. Apple Macpro Computer will recognize this.