Background

• Doe was subpoenaed to decrypt and produce unencrypted contents from seven digital media devices, with immunity sought under 18 U.S.C. §§ 6002-6003.
• The district court granted immunity limited to the act of production, not derivative use of the decrypted contents, and Doe was compelled to decrypt before a grand jury.
• Forensic analysis showed encrypted drives using TrueCrypt; investigators could not access encrypted portions, creating uncertainty about what, if anything, existed on the drives.
• Doe argued that decrypting and providing the contents would be testimonial and trigger the Fifth Amendment, because it would reveal possession, control, and ability to decrypt incriminating files.
• The government argued the act of production was non-testimonial and relied on a foregone-conclusion theory, while acknowledging potential derivative use of the decrypted contents.
• The appellate court must decide (a) whether decryption is testimonial and (b) whether the immunity offered was coextensive with the Fifth Amendment to permit compelled production.

Issues

Key Cases Cited

• United States v. Nixon, 418 U.S. 683 (1974) (establishes broad public-right to evidence with privilege carve-outs)
• Fisher v. United States, 425 U.S. 391 (1976) (foregone-conclusion doctrine; production may be non-testimonial when government knows existence and possession)
• Hubbell v. United States, 530 U.S. 27 (2000) (production can be testimonial when government lacks foregone-conclusion knowledge)
• Kastigar v. United States, 406 U.S. 441 (1972) (immunity must be coextensive with Fifth Amendment; use and derivative-use immunity required)
• Doe v. United States, 487 U.S. 201 (1988) (testimony and disclosure implications under Fifth Amendment)
• United States v. Norwood, 420 F.3d 888 (8th Cir. 2005) (foregone-conclusion standard and need for reasonable particularity)