Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Criminal Law and Procedure Practice Group, was recorded on Monday, August 5, 2019, during a live teleforum conference call held exclusively for Federalist Society members.          

 

Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is on "Compelled Decryption." My name is Wesley Hodges, and I am the Associate Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today we are very fortunate to have with us Professor Orin Kerr, who is Professor at the University of California, Berkeley School of Law. Also with us is Professor Laurent Sacharoff, who is Professor at the University of Arkansas School of Law in Fayetteville. After our speakers gives their remarks today, we will move to an audience Q&A, so please keep in mind what questions you have for this subject or for one of our speakers.

 

I believe Professor Kerr is starting today. Orin, the floor is yours.

 

Prof. Orin Kerr:  Thanks very much, and thanks to The Federalist Society for having us. This is a discussion about an issue that is working its way through the lower courts right now and is really on its way to the U.S. Supreme Court, and that is what are the Fifth Amendment limit on compelled decryptions? Let me talk just a little bit about what that means and what the debate is about before turning it over to Laurent.

 

      So the big question here is what the government's standards are when the government wants to unlock a phone or computer or file that is encrypted, and encryption is everywhere these days. If you think about how your phone works, you probably have a smartphone and, probably, it locks when it's not in use and you need to enter in a password or put on a thumbprint or show it your face or something like that in order to unlock it. And what to the user just seems like a very casual act of unlocking or accessing is actually an extremely complicated process of unscrambling the data that is on your phone.

 

      And it turns out that modern uses of encryption are tremendously strong and that that is a very, very strong lock on your device. And your phone, for example, is constantly being locked and unlocked as you're using it. Well, when the government is investigating somebody and they have a search warrant based on probable cause to search the person's phone, they will often come across the phone in its locked state, and they want to unlock the phone because a locked phone is not even a good paperweight. It's useless for the government. It's really only useful for them if it's unlocked, and that way they can access the data.

 

      So the government will try to unlock the phone, and there are a couple different things they can do. First, if somebody has set up biometric access on their phone, that's the thumbprint or your face, that is using a part of your body to unlock the device, the government may try to do that and make people put their thumbprints on a phone or show the phone in front of their face in the case of the facial recognition version of biometric access. But the problem that is really creating a lot of disagreement in the lower court is what happens when the phone or computer or other or file is locked using a password or a passcode. So that could be any alphanumeric or just number password that a person might have to enter in order to unlock the phone.

 

      And what will happen is the government will go to somebody who they think might know the passcode and say, "Enter in this passcode." And the person will say, "No, I have a Fifth Amendment privilege against self-incrimination. You're trying to incriminate me by having me access the passcode, and I'm not going to do it. I'm not going to comply." And then a question is how should a court assess this claim to Fifth Amendment privilege when the individual has claimed this privilege in response to some sort of order to unlock the device by entering in the password.

 

      And this is something that is working its way through the courts. Right now, there's an Eleventh Circuit decision on this from 2012. There's a Massachusetts Supreme Judicial Court decision on this from just a few months ago. And the issue is pending before the Supreme Courts of New Jersey, Pennsylvania, and Indiana. There are a lot of other intermediate lower court, state court decisions dividing on this, and they're just trying to figure out what should the standard be. And there's just disagreement on this question. And I think it's fair to say that right now, there's a circuit split between the Eleventh Circuit decision and the Massachusetts decision. Although, some people disagree on whether there's really a split yet. If there isn't one yet, there will be soon.

 

And so, let me just talk for a minute or two about what the basic disagreement is and then I'll turn it over to Professor Sacharoff. So the basic disagreement is how the Fifth Amendment should apply to an act of compelled password entering. And the way the Fifth Amendment works, and the key case here really is Fisher v. United States, is that you can't compel a person to reveal the contents of their mind in a way that would incriminate them, that would help the government obtain evidence against them. Everyone agrees that making somebody enter in a passcode is incriminating and making them reveal the contents of their mind. That is, they know the number and they're being forced to disclose it. In the ordinary case, everyone agrees that would be a Fifth Amendment issue.

 

Where you run into questions is when the government is not trying to obtain the passcode. They don't want to know what the number is. Instead, they just want the person to do the act of entering it in without showing the number or the passcode or the password to the government. And in that case, it's an act. The person is committing the act of unlocking the device, and the issue is how the forgone conclusion doctrine of Fisher v. United States applies.

 

So Fisher was a case involving compelled disclosure of a set of documents. The government, under the facts of the case, or the assumed facts of the case, the government went to somebody and said, "Hand over your tax records." The individual said, "Well, I have a Fifth Amendment privilege against this." And the Supreme Court said, "Well, this act of complying with what was really a subpoena for the tax documents, that does raise Fifth Amendment issues. You're being forced to reveal the possession, that you possess these items, and you're being forced to authenticate them. And you're showing that they exist, and you have them."

 

But the Court says there's a foregone conclusion doctrine which is if the government is not trying to use that act to prove those implied facts but actually already know those facts, in that case, it's a foregone conclusion that you possess these items and that they're authentic. The government isn't gaining any trial advantage from making you do these things, and, therefore, the Fifth Amendment privilege is overcome by the foregone conclusion doctrine.

 

A broad way of thinking about this is you have a right not to tell the government something that's on your mind, something that you know. On the other hand, if the government is not trying to learn that but is actually trying to get access to some other evidence and just needs you to do something that the government already knows in order to get to that underlying information, the government can make you do that because they're not trying to add to their body of knowledge through the testimonial act of complying with the order.

 

And the disagreement in the lower courts right now is how that applies to an act of compelled decryption with one court, the Massachusetts Supreme Judicial Court, taking the view that the only thing you're testifying to when you're compelled to enter in a password is that you know the password and that as long as the government knows that you know the password, you're not telling them anything testimonial that they don't know when they make you enter in the password as long as you're not actually revealing it to the government. And the Eleventh Circuit taking a view that there's more to it, there's more to the government compelling you to enter in a password. There's implicitly other testimonial information such as what's on the device, what are the files stored when the computer is decrypted, and that therefore, the government needs to show that you have some idea of -- the government needs to show knowledge of what files are on the device in order to make somebody be forced to enter in a passcode to reveal those files.

 

That's just a rough introduction to the disagreement. The core question is just how much does the government need to know about what you know and what they know in order to compel this act of unlocking the device, with disagreement so far on the standard from the lower courts. So that's just a basic overview and, Laurent, how did I do? What would you like to add?

 

Prof. Laurent Sacharoff:  Yeah, that's great. It really puts it in context, so thanks for that. I guess I'll just add a few things. I want to re-emphasize what you said which is that this is not about compelling someone to orally state their password, which would violate the Fifth Amendment, pretty much everyone agrees. This is compelling the person to enter the password into the device and in such a way that no one else sees it. The government doesn't learn the content of the password, and the device opens but doesn't record it in a way that the government could recover the password. So it really is very much an act in a way, at least looked at externally, in the sense that you just enter these numbers and the device opens and the numbers you entered evaporate, essentially.

 

      And so the initial problem that we all face and that the courts face is that this is very act-like and doesn’t seem like speaking. You're not telling anybody. It's true you're typing it in, but because it feels like turning a key and not revealing any information, there's some, at least, temptation to say it's a pure act and the Fifth Amendment doesn't apply at all just because it's an act. But almost no one has taken that path.

 

      Both Orin and I and the courts on both sides who disagree on this issue have decided this is analogous to an act of production in the sense that some Fifth Amendment protections apply. And once you take that step, then you refer to incorporate this whole other doctrine, the active production doctrine, which has a lot of existing Supreme Court cases that deal with productions of documents in ordinary, usually white-collar, cases and importing that doctrine here. And a lot of the confusion arises for two main reasons: one, the act of production document itself, even on its own terms, doesn’t make sense. It's kind of flawed, and then when you therefore try to apply it to this new situation, it's doubly hard because you're taking an unprincipled principle and trying to apply it to a new situation.

 

      So first, let's just talk a little bit more about the act of production doctrine in the physical world with papers. And, of course, how that works is the government subpoenas a defendant and says, "Produce these kinds of papers." And if a court enforces it, that counts under the Fifth Amendment as a compulsion. But the Court in Fisher said it doesn't violate the Fifth Amendment on the surface because the documents that the person is producing already exist. So the person was not compelled to create the documents. The government didn't compel the person to create the documents, they were voluntarily created at the time. And at this point, these existing documents, the subpoena's merely requiring the suspect or the defendant to surrender them, as the Court has said. Merely surrendering pre-existing documents doesn't violate the Fifth.

 

      But then Fisher added this big exception, which is the act of production exception. And as Professor Kerr explained, there are three ways in which there's an exception, meaning that the act of producing itself is testimonial. And one of the big ways in the typical kind of case that arises, which is a child pornography case for phones, the two big issues are possession and authenticity, but particularly in our case possession.

 

      So in an ordinary physical case, if a person is subpoenaed to produce -- let's say the subpoena says, "Produce all firearms in your house," which would be a lawful subpoena if it was pursuant to a valid investigation. If the person produces guns, and let's say the person is also a felon, the person has, by the production, by the act itself, testified, communicated that he possesses the guns. And because he's a felon, that would be an element of the crime. And what's strange about this is the person handing over the guns does not intend that act to be a symbolic communication, "I possess these guns." Rather, when the person produces the guns, as a byproduct, we infer that he possesses the guns. And so it doesn't even really need to go through his mind.

 

And so I think one of the—and we'll get to this when we get into our disagreements—but one of the big, I think, disagreements is the act of production cases denominate the testimonial aspect of the act of production as simply the inference we can draw from that act whether or not the person producing it has in mind to communicate that. Meaning because someone produces a gun, they must have possessed it physically because, of course, they did.

 

And so when we apply that to phones, the same principle applies. When the person does the act of opening the phone, they are demonstrating that the files on the phone are theirs, just like as with the gun analogy. They may not want to communicate that. Probably, they don't want to communicate that. But they do communicate it inadvertently by opening the phone, and, therefore, it's analogous to an act of production case where the testimonial aspect of entering the passcode is the same as the act of production. And in both cases, what's communicated testimonially is the possession of either the documents in a real file case or the phone in a -- or the files on the phone in the case of a phone.

 

So I'll think we'll talk a little bit more about this, but that's -- and I'm veering, I know, into the argument itself, but there's a little more background, I think, on the act of production. And then, of course, the foregone conclusion, the big debate is does the foregone conclusion doctrine apply to the password only or to the files themselves? And, again, we'll get to the argument but in the ordinary document production situation, the forgone conclusion doctrine applies to the files themselves, not to their content directly but to the question of does the person possess them? But you have to refer to their content to decide whether the person possesses them.

 

      So I'll wrap up after this portion here and let Orin take it away.

 

Prof. Orin Kerr:  Great. So let's get into the disagreement because this is one of those good topics on which the two of us strongly disagree, and we have just really different ways of looking at this, and so it's good to get that disagreement out. And so my view is that the foregone conclusion doctrine makes a lot of sense. It's actually -- it's an appropriate doctrine, and it applies in a very clear and simple way to an act of compelled decryption. And this is how I think of it.

 

      The big question in a[n] act of production doctrine-foregone conclusion issue is just what is necessarily communicated by the act of compliance with the order? What in the person's head is necessarily being disclosed? It's not what they ideally want to be disclosed, it's just what are they necessarily thinking in the act and also in the implied statement that whatever they're doing is compliance with the order. And that when somebody is ordered to decrypt a phone or device, they're given a password prompt and they're told, "Okay, we're not going to look at your passcode, but you have to enter it in to unlock the device." They're communicating one thing necessarily, which is, "I know the passcode." If you know the passcode, you can unlock it. If you don't know the password, you can't unlock it. The act of unlocking the device, entering in the passcode is going to reveal a fact about your state of mind which is, "I know the passcode." And because that’s the only incriminating -- that's the only testimony implied by the act of decryption, that's the only thing the government should have to show in order to satisfy the foregone conclusion doctrine.

 

      So basically, when the government has a phone, and there's a password prompt, and they go up to somebody, they say, "Enter this in," and the person says, "I plead the Fifth. I have Fifth Amendment privilege," all the government has to show is that the person knows that they know the passcode and, therefore, that the government is not gaining any advantage from having the person enter in the passcode as to the testimonial significance of the act of entering in the passcode. And so I think the only thing that's revealed that is testimonial by an act of compelled decryption is this implied statement, "I know the passcode," and that the things that the government might learn from that, that is the evidence that's stored on the device, is not part of the testimony. It is just part of the evidence that might follow from the testimony, and that that is a critical distinction. And I see that as a critical distinction because I see that as a Fourth Amendment problem, not a Fifth Amendment problem.

 

      So we're dealing with cases in which the government has a search warrant based on probable cause to believe there's evidence stored on the device. They have a Fourth Amendment warrant; that is what is required. The act of unlocking is merely getting past this hurdle to get to the point where they can execute the search warrant. And if the only thing that is implied in terms of testimony is, "Hey, I know the password," then, that's the only thing that government should have to show in order to satisfy the foregone conclusion doctrine.

 

      So I think that -- and I actually, more broadly, think that this doctrine makes a lot of sense because the idea of saying that there is implied testimony in an act is only about dealing with the government trying to learn new information and gain some benefit at trial from getting a person's testimony. And the reason why I think you need -- the foregone conclusion doctrine works is that without it, a person could strategically gain possession of things and introduce some sort of testimonial act, when actually it had nothing to do with a genuine aspect of testimony. It wouldn't actually be the form of testimony without the substance of testimony.

 

      And an example of this, I think, goes back to the original Fisher case where the Court imagined how this law would apply to the government issuing a subpoena to the taxpayer for the taxpayer's documents. And if you imagine how the Fifth Amendment might apply to that scenario versus the government trying to get the tax documents from the accountant who had prepared the materials, and what the Court says is that the underlying tax documents, that's not what's compelled. This is as Professor Sacharoff noted, the underlying stuff that the government's trying to get access to, that's not a Fifth Amendment issue because that's been prewritten; that's already there. And, therefore, there's not a Fifth Amendment question of getting someone's mind to reveal it. It's already been revealed. Instead, the only question is what's the implied statement in handing over the document?

 

      And I think it wouldn't make sense for somebody to be able to get a Fifth Amendment privilege by saying, "Hey, other people have my documents. Let me take possession of them so the government can't get them through a subpoena," creating new rights through the Fifth Amendment purely as a matter of form, when it's not like the government cares that I have possession of the documents versus my accountant has possession of the documents. And so the foregone conclusion doctrine is trying to figure out when are we dealing with a case where the government is really trying to use what's in someone's mind to get information to prosecute them versus when is it just this matter of form that it turns out that there's this barrier to practical access to the underlying non-Fifth Amendment protected stuff.

 

      And so I see how this should apply in a compelled decryption case is just if the government can show that they already know that the person knows the passcode, it's their phone, sort of the easiest example. The government can then make the person enter in the passcode. And the fact that there may be incriminating information on the phone after that person -- that's a Fourth Amendment issue. That's a question of the government breaking into someone's private space and getting their evidence that may implicate them in a crime.

 

But the Fifth Amendment part is only bypassing that barrier that's been put in place, and that's a practical barrier. The government really doesn't care that the person knows the passcode or not, or they don't care what the passcode is. They just want to get to the underlying information. So I think the Massachusetts Supreme Judicial Court was correct on this, and the Fifth Amendment limits are modest, and then it becomes a Fourth Amendment question during the search itself.

 

So that's my side of the disagreement. Professor Sacharoff, why don't you take your side and where you disagree.

 

Prof. Laurent Sacharoff:  Yeah, sure. So the argument I make is that what professor Kerr is saying could be the rule. It's not a terrible rule. I just don't think it's analogous to the existing Supreme Court act of production cases in the real world. And since we're all agreeing that's the analogy we're going to use, I think if we actually use that analogy, we come up with a different rule, which is to say, just as in the real world, for a phone, the government has to prove exactly the same thing, that it knows with reasonable particularity the -- and can state, with reasonable particularity, what documents it seeks are on the phone and how it knows that they're on the phone. Just as in an ordinary document production under the foregone conclusion doctrine, it has to say, "We know you have these documents. And by these documents, we mean monthly bank statements from this bank for this period, and therefore, you have to produce them."

 

      So that's just a very mechanical comparison of the two situations, but I think in this case it's not just mechanical but rests on the underlying principles to the extent they make sense of the act of production doctrine. So to elaborate on the analogy, entering the password is the act just like handing over documents is the act in the physical world. The files on the phone are the documents just like in the real world the pieces of paper are the documents. And so that's the very mechanical idea of the analogy.

 

      Now, if we treat the password as the object of the foregone conclusion doctrine, as Professor Kerr says we should, we're mixing categories and saying the password is really just the act of entering the password, it's not the password itself. So we're taking the act and saying it's the thing produced, but the act is not the thing produced. The act is the opening of the device and the thing produced are the files on it. And that's why courts have used the act of production as an analogy in the first place because in the end, from a realistic point of view, what you're doing when you open your device is producing the documents on it. That's the reason why we're using the act of production as a[n] analogy in the first place.

 

      So Professor Kerr says that the act of entering the password is -- the password is the only testimony and the documents that are revealed aren't the testimony. Now, I agree the documents themselves alone aren't the testimony. It's the fact of possessing them that's the testimony, but the idea that the password itself -- or I should say the knowledge of the password itself is the only testimony and the fact that you possess the documents on the device is ancillary. The problem with that is both the knowledge of the password and the fact that you possess the documents are equally inferences. Neither is truly testimony because in neither case does the person intend to communicate that message. And so once we get into the world of inferences, they're both inferences, and so neither should be elevated above the other.

 

      A third way of getting at it is to say, "Well, let's apply Professor Kerr's rule to an ordinary document production." If we were to do so, what we would find is that the doctrine would evaporate because analogously speaking, when a person produces documents, you could say, "Well, the only thing they're really showing is that they're physically capable of producing the documents or that their brains are capable of doing it." But the courts have held that when it comes to possession, when the person produces the document, one of the implicit testimonial aspects is the person possesses it regardless of what they're thinking. Maybe they don't even know they possess it. They turn over a big box of documents; whatever's in there they possess. They might not be thinking about it. And document productions can be pretty broad that way.

 

And so even if we were to apply Professor Kerr's rule back to act of production cases themselves, it wouldn't match the actual outcomes of those cases which is to treat the possession of the document as the testimony, not the act of producing it only as the testimony. I'll leave it there so we can maybe get some either more discussion or questions.

 

Prof. Orin Kerr:  Great. Yeah, let's maybe do one more round of discussion because I wanted to maybe focus a little bit on where we're disagreeing here.

 

      So the way I think of it is that the act of production doctrine that was applied in Fisher, it just so happened in Fisher that was a doctrine that was applied to an act of production, "Please, give me these text documents or a subpoena for these text documents." But I see that doctrine as a broader question of how does the Fifth Amendment apply to any compelled act? It happened to be a question of production in Fisher, but that just happened to be the facts of Fisher. And that the best way of approaching this area is to understand Fisher and the act of production doctrine as a broader application of a legal principle, how do you identify the Fifth Amendment implications of any act, and the foregone conclusion doctrine as being how do you know what is implied by the act?

 

      So under that approach, which I'm taking, you'd then ask what is the statement necessarily implied by the act rather than what is intended by the act or what might be a plausible inference from the act? So in Fisher they said, "Hand over your tax documents in your possession." And Fisher hands over certain documents. That is impliedly -- that is necessarily testimony of, "I possess these documents," because you can't comply with a subpoena if you didn't possess the documents. And these things must exist because you can't comply if they don't exist. And these must be what you're looking for because, after all, there's a subpoena for those things, and therefore, you're impliedly saying, "These are the things that you're looking for. I have satisfied your order."

 

      So the way I think of it is just what is the statement necessarily implied by the act in the context of what was asked for or ordered. And the reason why that matters is I then draw a big distinction between an order to decrypt, that is enter in this passcode or enter in whatever passcode is needed to unlock the device versus hand over all decrypted files on the device or produce every file in unencrypted form on your device. I see those as two really different orders because in one of them they're just saying, "Enter in some numbers that unlock the device," and in the other they're saying, "Go through the device and find all of the different places where there may be encryption and unlock all of those." And that latter scenario is actually implying a lot of testimony that would allow a Fifth Amendment privilege to be sustained, whereas the former version is just merely communicating, "I know the passcode."

 

      And the reason -- and the example I use in the article is in the case of my sister's phone. It so happens, my sister has a smartphone, and I know her passcode because I asked for her passcode because I wanted to use her phone at a family event a couple years ago. And if the government ordered me to enter in my sister's passcode, I'd be able to do so, assuming the passcode hasn't been changed, but I have no idea what is on her device. I don't know what's on her phone at all. I only know one thing. I only know the passcode. And so I think that is the only implied testimony if the government were to come to me with the phone and the password prompt and say, "Enter in the passcode."

 

      On the other hand, if the government said, "Produce all of the unencrypted files -- all files in unencrypted form on this phone," I'd be unable to do that. In order to do that, I'd need to know a lot of information about what is on the phone, and that would imply testimony about what is on the phone. Similarly, if the government came to me with my sister's phone and said, "Produce all tax documents from the year 2014 that are stored on this phone," I'd need to know a lot about what's on the phone in order to comply with that. That's information I don’t have. And so that would then be an implicit search requirement in addition to an unlocking requirement, and that would trigger the Fifth Amendment.

 

I think what makes it different in the case of unlocking a device where there's a password prompt that's given to the person is that there's no testimony as to what is on the device. I have no idea what's on my sister's phone. The only thing that's being communicated is, "I know the passcode." And it's not that I want to communicate it. It's not like I'm like asking, "Oh please, I really want you to know that I know this." It's that when I enter in the passcode, I have necessarily communicated that because I've been ordered to do that, and I've complied. And so there's been an act of compliance which is implicitly saying necessarily, "Yeah, I must've known that in order to comply." So that's how I think of it.

 

Prof. Laurent Sacharoff:  I guess the problem is with ordinary document production -- let's take authenticity because that's the version that's least necessarily implied. So if a person is compelled to produce documents from their own files, the document is authenticated not because the person -- or not only because the person looked at the subpoena, saw it was responsive, and produced it. That’s one way it's authenticated, but that's only one way.

 

      The second way it's authenticated is because it physically came from the person's files. And does that necessarily mean a 100 percent it's theirs? Like, take a bank statement. So if a person is ordered to produce all bank statements, and they produce not just their own but their spouse's in an excess of caution because they're not sure what the subpoena really asks for. So there are bank statements from the spouse, and let's say, for whatever reason, it doesn't have the name on it, or it does have the name on it and the question is is this jointly held or whatever? You could say it came from the suspect's files and the suspect produced -- or it came from the suspect's files and, therefore, they're authentic, meaning that they're the suspect's bank accounts, but it would turn out that they're not.

 

      It's some evidence that they're authenticated. And in most cases, if that's all there were, a court would send it to the jury and say, "Well, this has been authenticated enough to be introduced as evidence." But it doesn't necessarily follow from the production. Nevertheless, that counts as one of the implied testimonial aspects of the act of production.

 

      So I hear you when you say that possession is more necessarily implied, but even there I think we can imagine a case in which the question at trial is, "Did you possess something on a given date in the past, a year ago?" And you're now asked to produce that thing, and you produce it. That necessarily means you possessed it five minutes ago because you produced it. Does it necessarily mean you possessed it a year ago? No. Is it evidence you produced it -- that you possessed it a year ago? Yes. It definitely could be admitted against you at trial as tending to show you possessed it a year ago but doesn't necessarily show -- producing it does not equal to showing you possessed it a year ago. And I think that's part of the problem with Professor Kerr's theory is that if it is making an unsupported division between what counts as the necessarily implied aspect of the production, the act, and what counts as an ancillary inference. I think that's just a spectrum.

 

      Last thing I'll say is with the password itself, even opening a device doesn't show you know the password because you may have opened it through facial recognition or some other way. And the authorities by stipulation aren't looking because we don't want to let them see what the password is or maybe even how you opened it. And so opening it doesn't necessarily mean you know the password. You could guess the password. Possibly there is no password. So even on the reverse side, I don't think opening it necessarily equals knowing the password.

 

Prof. Orin Kerr:  Great. I think at this point, probably, we should open it up for questions, if there's questions. Otherwise, the two of us can keep going close to the full hour, but let's stop and take questions if there are any.

     

Wesley Hodges:  Absolutely. Thank you both so much, Professors. Here is our first caller of the day.  

 

Mitchell Keiter:  Hi, Mitchell Keiter calling here from Los Angeles. It seems to me there's a difference between saying, "Please produce all firearms stored in the home," and "Please open the door so we may execute a search warrant of your home." And if there is a difference, it seems the question is which case this falls -- which is the more analogous precedent? It would seem to me this is basically a function of opening the door to the home, or to the phone, or to the computer rather than affirmatively producing the documents for the law enforcement. It seems that law enforcement would find them on its own so long as the door is open. Isn't that the more analogous precedent?

 

Prof. Laurent Sacharoff:  Yeah, in a way—this is Laurent—in a way, I think that's true. But then you're saying that entering the password and opening a door are pure acts that enjoy no Fifth Amendment protection at all. And that's just -- neither Orin nor I believe that, and neither of the courts on either side of the divide believe that. They believe that the -- call it, even if it's just merely opening a door, counts as sufficiently testimonial to enjoy some kind of protection. And I think I said this at the outset, you could just say look, entering a password is a pure act, enjoys no Fifth Amendment protection, forget about the act of production doctrine entirely. I do not think that's an unreasonable way to go, but it doesn't seem to be the debate right now.

 

Prof. Orin Kerr:  This is Orin. I would put it differently. I think the caller's exactly right in that you need to break down how much of the constitutional protection in an act of unlocking and finding evidence is a Fifth Amendment issue and how much is a Fourth Amendment issue. And that where the government comes with that password prompt and says, "You enter in the passcode," and the person enters in the passcode, that's the Fifth Amendment part. And then once the government has the unlocked device and then they search it, that's the Fourth Amendment part. That's what the warrant is for. I think there's the Fifth Amendment part which is the unlocking the door, and then the Fourth Amendment part which is the actual searching of the phone, and that you have to focus on whether the order is to just unlock the device or the order is unlock the device and find stuff on it, and that raises Fifth Amendment issues.

 

      But when we're only talking about unlocking the device, I think the caller's exactly right, that that's just an act of compelled unlocking -- unlocking alone. There are Fifth Amendment issues because a person is being required to say I know the passcode needed to unlock this by virtue of being ordered to do that. They have to -- implicitly, they're saying that when they comply, so there are Fifth Amendment issues. But once the unlocking has occurred, then it's the government's time to search under the Fourth Amendment. The Fifth Amendment issues go away, and that that means that the Fifth Amendment part of the process is limited to that unlocking and that that's why the standard under the Fifth Amendment is relatively low because it then becomes a Fourth Amendment issue for the search warrant.

 

Wesley Hodges:  Well, very good. Next caller, you are up.

 

Roger Lerner:  Hi, this is Roger Lerner in Maryland. I guess the question is once the phone is open, then what? Because as I understand it, there's complete access to the phone. To analogize to the case in Massachusetts, suppose it's not tax records. Suppose the government knows that there is a voice recording of a confession in a moment of contrition. Does that automatically become available in the context of the unlocked phone because the government now has access to everything on the phone?

 

Prof. Orin Kerr:  This is Orin Kerr. Well, if the government has unlocked the device and if the file is on the device in unencrypted form, that is, it's not separately encrypted, then it just becomes a question of does the government have the legal authority to search the phone? And, practically speaking, can they find that file and realize that it's evidence? And so the first question, do they have legal authority, would be answered by whether they have a search warrant allowing them to search the phone and then whether they can find it is just a forensics questions. Presumably, they'd be looking for audio files.

 

And it's no different from searching a home. Imagine there's a lock on a door and the government needs the assistance of an individual to unlock the door to the home. The government then searches, and if somebody happens to have written down in a diary their confession to a crime, we don't say, "Oh gosh, this is a person's statement. We can't look at it because that would incriminate them." Instead we say, "Great, so glad that the confession has been made so available and the government can solve this crime easily," as long as the government has that search warrant needed to search the home.

 

Of course, as a Fourth Amendment matter, we demand the warrant to search the home, and we demand the warrant to search the phone in the phone context. But I think the right answer is once the government gets past that password gate, the initial one into the phone, as long as there's no additional uses of encryption on the device, and you can have multiple layers of encryption where individual files are encrypted, and then the entire computer is encrypted on top of that. As long as it's all left exposed and there's a warrant, the government is allowed to get that information just as they would in the physical world.

 

Prof. Laurent Sacharoff:  Yeah, I agree with that for the most part. I'll only say the Fourth Amendment side is absolutely correct to the extent that we treat this as an act of production and to the extent that you agree with me that the government has to show that it knows of the specific files sought. I would argue that if we're going to stick with the act of production doctrine analogy, that's all that the government should get, namely the files it can identify.

 

      Now, it's complicated by the fact that this isn't purely a subpoenaed document production case. It's a hybrid between a document production to get the password to get access backed up with a warrant that gets you much more in a sense. So it's that confluence that I think makes it difficult, but I don't think that that -- just because it's a hybrid between the Fourth and the Fifth doesn't mean the doctrine under the Fourth wins and the analogy under the Fifth loses. I think it's just a new situation, and we have to decide should the government get everything or just the stuff they've been able to identify that is on the device?

 

Prof. Orin Kerr:  And if I could add just one follow-up. I think there are a lot of really interesting and important questions of what the Fourth Amendment limits should be on searching an electronic storage device. So, for example, I've argued that there should be a use restriction on non-responsive information where the government describes in the warrant what they have probable cause for. And if they come across other evidence of crime in plain view, I think they should not be allowed to use that, generally, in the digital search context because of how much evidence is stored on people's electronic storage devices.

 

      And that's something that the courts are still trying to figure out, what are the privacy protections of executing a search warrant on a device is its own issue. But, importantly, that's true whether the device is encrypted or not encrypted. So the encrypted component, I think, is just the unlocking and then there's the separate question of all right, how do we limit search warrants, which is really its own -- that's its own separate Federal Society teleforum that maybe…

 

Prof. Laurent Sacharoff:  It's its own teleforum for sure. But I also think it sheds -- or from my point of view, it sheds light on the Fifth Amendment doctrine because I do think that they should be considered together to some extent. There's a huge debate about the extent to which the Fourth and the Fifth run into each other, but we don't have to go full Boyd to think that they shed light on each other. And it strikes me that we can limit with the Fifth to some extent in balance to the breadth that the Fourth allows until we fix the Fourth.

 

Wesley Hodges:  Well, very good. Let's go ahead and move to one of those callers.

 

John Shu:  Thank you very much. This is John Shu from Newport Beach, California. What if possession of the code or knowledge of the code itself is incriminating?

 

Prof. Orin Kerr:  So this is Orin. So it may be incriminating, and then it becomes a question of whether it's a foregone conclusion or not. An example of where I think that would be a valid Fifth Amendment privilege is imagine it's like a group house where there are -- the government executes a search warrant. There are a bunch of phones that are suspected of involvement in criminal activity because of maybe they're like in a stash of drugs or something like that.

 

      And then the government goes to the different people in the house and says, "You enter in the passcode." And in that case, it's incriminating because the person is admitting, "Hey, I know the passcode of a phone that is used in," in this case, "the narcotics trade." And so that would be incriminating information. And the question would be then does the government have information showing that the person knows the passcode or not? Are they trying to use the person's act of entering in the passcode in order to show their involvement in the crime?

 

And so that's a case where I think there would be a valid Fifth Amendment privilege because the government doesn't already know that the person knows the passcode. Where I think the foregone conclusion doctrine applies and the government can order the person to act is when it's pretty clear that the government, they're -- that person's phone. They see the phone from someone's pocket, and they have a known phone number. And the government calls the number, and it rings for that person, and their fingerprints are on the phone. And so it's pretty clear, listen, if they're regular users of the phone, they probably know the passcode. And so those are the kinds of situations where I think it would be a foregone conclusion. Other kinds of cases, it wouldn't be. It'd just be a fact specific issue for that.

 

Prof. Laurent Sacharoff:  Yeah, this is another way of restating our debate. In my view, if there's something incriminating on the phone, the act of entering and opening the device is incriminating in the same way as with the document production. The act of producing something that itself is incriminating and possession of that would be incriminating, then that act or the testimonial aspect of that act becomes incriminating. I don't know if the knowledge of the password itself can be incriminating in a more direct way in the context in which we're speaking because the person never reveals the actual password.

 

      Now, if they're compelled to -- "What's your password?" "I killed my wife." If that's the content of the password, that would be incriminating but that's being orally -- required to be compelled orally stated and that's, we all agree already, fits under -- is protected by the Fifth Amendment.

 

Wesley Hodges:  Caller, you are up.

 

David Lubkin (sp):  This is David Lubkin in New Hampshire. So one of you touched on an interesting complication. I used to work in massive data storage a long time ago. The notion of that has expanded, but when you have people like Amazon, for instance, or large corporations where it's like a scene from the Raiders of the Lost Ark. There are millions of storage devices which may have trillions or quadrillions of files, any one of which may have the data that they're looking for, any one of which might be encrypted. So maybe you could be compelled to decrypt a file if they knew which one to ask. But there's a trillion encrypted files, so at some point, you get into a novel territory where there's just too much. And how far can you be compelled to assist in the search?

 

Prof. Orin Kerr:  Well, this is Orin. I think you have a Fifth Amendment privilege against any implied statements in the active assistance. So you could say, "Listen, making me help you find the items, I'm going to be forced to testify that I know where the incriminating items are and therefore, I have a privilege against that." And then the government will respond, if they can, "Well, here's why we know that you know this information, so we're actually not relying on you for that information." And I should say that there's an added question of whether the government can use at trial the act of assistance or not, and I think they shouldn't be able to. But so that would just be basically another version of this debate which is what's the implied statements in the act of assistance and what does the government need to show?

 

      I think more broadly, generally speaking, if the government is actually trying to find the item and they're trying to figure out who knows where this item is, they need to do that on their own. They're not going to be able to get assistance from suspects, at least, unless -- they might be able to find assistance from third parties who are not implicated in the crime, who won't assert a Fifth Amendment privilege, but they can't rely on the suspects unless the suspects decide they want to go along with this to get that information. That's where the Fifth Amendment protection is retained where the government is using the person to get to the information and the government doesn't know that the person knows where that information is located.

 

Prof. Laurent Sacharoff:  Quick follow-up, this is Laurent. It triggered in my mind something that I didn't quite understand about Orin's -- Professor Kerr, what you were saying which is that suppose -- and maybe this is your question, David. If I have a laptop, and I have 400 files, and each of them is separately encrypted with a password, and the government knows it's my laptop so they can show that I must know or probably know the password to each individual file on it, or there's a good chance I do, can they separately compel me to enter the password to each file? I'm not locating it. They bring up the file and say, "Here's the bar, enter your password." And maybe what David is asking is, really, 300, they can do that 300 different times or 1000 different times? Or maybe that's not what he's asking, but it raised that question, too, in my mind.

 

David Lubkin:  Well, that raises -- let's take it even further because it's not just 400. These days with current capacity, it could be 400 billion.

 

Prof. Laurent Sacharoff:  But who would know -- in your case of 400 billion, who knows the pass -- because businesses don't have a Fifth Amendment right, only individuals do. Who would know those billion passwords?

 

David Lubkin:  Well, it could still be an individual. My point is that storage is now cheap, that whatever evidence -- maybe the incriminating information is an account number in the Cayman Islands or something. That's a really small amount of data which could be hidden in a football field of hay.

 

Prof. Orin Kerr:  Oh, I see.

 

David Lubkin:  There's so much stuff that they can't find it on their own. I think you wind up with a measure of protection against incrimination or government action just simply by the volume.

 

Prof. Orin Kerr:  Yeah, this is a question that has often interested me like when the government issues a warrant to Google to produce the email account of Person X. It's a search warrant. Are they in theory getting the right to search the entire server on which that email account exists? I think the answer is no, but if we were like literal, physical literalists, the warrant for one person's account technically should let them see the entire server. I mean, that makes no sense, but it's a bit of a puzzle.

 

Wesley Hodges:  Well, very good. We do have one question left in the queue. Let's go to that caller.

 

Jack Park:  This is Jack Park. I'll be quick. This may be your next -- the other teleforum, but I am a lawyer. They say, "Open your phone." And I say, "There's attorney-client communications on this phone. There's work product on this phone. You do not have the right to get it unless your subpoena directly approaches that." And they say, "Open the phone. Tough." And I have my wife's phone. She is a licensed professional counselor, and she's also an Episcopal priest. They say, "Open her phone." I say, "I'm not comfortable opening her phone. There's counseling material on there. There's clergy material on there, and I'm not comfortable doing it." Now, I'm asserting her privilege. I don't know that I can do that, but how do we solve things like that, like attorney-client communications and other privileged material on the phone?

 

Prof. Laurent Sacharoff:  Well, I think when the authorities execute a warrant with encryption or not, they have protocols that they usually observe to avoid things that are attorney-client privilege. I don't know what the penalty is if they don't observe those limits. Obviously, the information can't be used in court against the person who owns the privilege, but beyond that, I don't know.

 

Prof. Orin Kerr:  Yeah, I think it's a Fourth Amendment -- it's a search question, not the unlocking question where those issues would come up. And as Professor Sacharoff says, there's lots of law on that separate issue.

 

Jack Park:  But it would be my burden to assert the privilege before opening the phone, correct?

 

Prof. Orin Kerr:  That’s correct.

 

Wesley Hodges:  Looking at our time, just one-minute left. I just want to turn the mic back to our professors to see if they have any closing remarks before we wrap up today.

 

Prof. Orin Kerr:  Well, first, I want to just thank The Federalist Society and to my friend, Professor Sacharoff, for hosting and having the debate. Stay tuned for the cases that are coming down the pipe. So the Indiana Supreme Court should be handing down its decision in Seal v. State any day now on this issue. The Pennsylvania Supreme Court heard oral argument on this about a few weeks ago. And the New Jersey Supreme Court is having argument on this in, I think, a couple weeks, maybe a couple months. So there are going to be a lot more cases here that add to the split, and I think it's ultimately something for the U.S. Supreme Court to resolve.

 

Prof. Laurent Sacharoff:  Yeah, and I'll just add that the interesting wrinkle that's now coming about is do thumbprints or facial recognition -- some courts are holding even those in joint testimonial protections. I'm not sure I agree with that, but it'll be interesting to see if the U.S. Supreme Court ends up taking a case that involves passcodes or involves biometrics or somehow both. Those two issues are getting entwined in interesting ways.

 

Wesley Hodges:  Well, this is a fascinating subject, and we very much appreciate the time both of you have spent with us today. On behalf of The Federalist Society, I would like to thank you both for the benefit of your valuable time and expertise. We welcome all listener feedback by email at [email protected]. Thank you all for joining us for the call.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.