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.

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Professor William Snyder

Professor William C. Snyderis a member of the faculty of the Institute for National Security and Counter-terrorism at Syracuse University after fifteen years with the United States Department of Justice.

Christopher w. FolkChristopher W. Folk

is a second year student at SU College of Law. Christopher is a non-traditional student, returning to academia after spending nearly twenty years in the high tech industry. Christopher served in the Marine Corps, graduated from Cornell University with a B.S. In Applied Economics and Business Management, attended Northeastern University’s High-Tech MBA Program and received a M.S. In Computer Information Systems. Christopher previously worked in Software Engineering and in addition to being a full-time student, Christopher is currently serving his second term as Town Justice for the Town of Waterloo. Christopher externed with a Cybersecurity firm in the Washington, D.C. area between his first and second year at SU College of Law. Full biography

Ryan D. White

Ryan D. WhiteRyan is currently a second year law student at Syracuse University College of Law, and is also pursuing a Master of Public Administration degree from Syracuse’s Maxwell School of Citizenship and Public Affairs. Ryan spent time with Homeland Security Investigations while pursuing his undergraduate degree at Wesleyan University, and spent his first summer of law school as clerk for the U.S. Attorney’s Office in the Western District of New York. He is a member of Syracuse Law Review, the Journal on Terrorism and Security Analysis, and participates in the Veteran’s Legal Clinic.Full biography

Anna Maria Castillo

is a third year law student at Syracuse College of Law. She is also pursuing a Master of Arts in International Relations at Syracuse University's Maxwell School of Citizenship and Public Affairs. She has interned at a London-based think-tank that specializes in transnational terrorism and global security and at the legal department of a defense contractor. She currently serves as an executive editor in the Syracuse Law Review. Full biography

Jennifer A. CamilloJennifer A. Camillo

is a third year student at Syracuse College of Law. She has served as a law clerk in the United States Attorney’s Office for the Northern District of New York and the Cayuga County District Attorney’s Office and as an extern in the Oneida County District Attorney’s Office. She is a member of the Syracuse National Trial Team and was recently awarded the Tiffany Cup by the New York Bar Association for her trial advocacy achievements.

Tara J. PistoreseTara J. Pistorese

holds Juris Doctor and Masters of Public Administration degrees from Syracuse University's Maxwell School of Citizenship and Public Affairs and its College of Law. She has served as a law clerk in the United States Attorney's Office for the Western District of New York and the Public Defender Service for the District of Columbia and as an extern in the United States District Court for the Western District of Washington. Full biography

Benjamin Zaiser

is both a scholar and a Federal Agent of the Federal Criminal Police Office of Germany. (Opinions expressed here are his own and not any part of official duty.) Full biography

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