Eleventh circuit says password is 5th, not 4th amendment subject matter
We hold that the act of Doe’s decryption and production of the
contents of the hard drives would sufficiently implicate the Fifth
Amendment privilege. We reach this holding by concluding that (1)
Doe’s decryption and production of the contents of the drives would be
testimonial, not merely a physical act; and (2) the explicit and
implicit factual communications associated with the decryption and
production are not foregone conclusions.
the use of the contents of Doe’s mind and could not be fairly
characterized as a physical act that would be nontestimonial in
nature. We conclude that the decryption and production would be
tantamount to testimony by Doe of his knowledge of the existence and
location of potentially incriminating files; of his possession,
control, and access to the encrypted portions of the drives; and of
his capability to decrypt the files. We are unpersuaded by the Government’s derivation of the
key/combination analogy in arguing that Doe’s production of the
unencrypted files would be nothing more than a physical nontestimonial
transfer. The Government attempts to avoid the analogy by arguing that
it does not seek the combination or the key,
but rather the contents. This argument badly misses the mark. In
Fisher, where the analogy was born, and again in Hubbell, the
Government never sought the “key” or the “combination” to the safe for
its own sake; rather, the Government sought the files being withheld,
just as the Government does here. Hubbell, 530 U.S. at 38, 120 S. Ct.
at 2044 (trying to compel production of documents); Fisher v. United
States, 425 U.S. at 394–95, 96 S. Ct. at 1572–73 (seeking to access
contents possessed by attorneys). Requiring Doe to use a decryption password is most certainly more akin
to requiring the production of a combination because both demand the
use of the contents of the mind, and the production is accompanied by
the implied factual statements noted above that could prove to be
incriminatory. See Hubbell, 530 U.S. at 43, 120 S. Ct. at 2047. Hence,
we conclude that what the Government seeks to compel in this case, the
decryption and production of the contents of the hard drives, is
testimonial in character.
