IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Transcription

1 Case: Document: Page: 1 Date Filed: 05/25/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT UNITED STATES OF AMERICA, : Appellee, : : vs. : APPEAL NO : APPLE MACPRO COMPUTER, et al. : : : JOHN DOE, : Appellant. : APPELLANT S PETITION FOR REHEARING AND/OR REHEARING EN BANC PURSUANT TO FED R. APP. P. 35(b) AND 40(a) Appellant John Doe respectfully petitions for rehearing to address two issues of exceptional importance. 1 The first concerns the scope of Fifth Amendment protection against compulsion to disclose a computer password to law enforcement. The panel likened such disclosure to an act of producing a tangible item known to be in one s physical possession, instead of a mental process culminating in the communication of personal knowledge. This was error contravening Supreme Court precedent holding that a person may not be compelled to disclose the content of his own 1 The full Local Rule 35.1 statement is set forth in a certification. 1

2 Case: Document: Page: 2 Date Filed: 05/25/2017 mind such as a memorized password over a claim of Fifth Amendment privilege. The second issue concerns the All Writs Act, which authorizes extraordinary writs where no statute addresses the particular matter at hand. Contrary to the panel s conclusion, the Act does not authorize orders compelling the disclosure of a password. The issuance of compulsory process in criminal investigations is entrusted by statute to the grand jury, subject to the protections afforded witnesses under the Federal Rules of Criminal Procedure and 28 U.S.C Separately, Mr. Doe seeks panel rehearing with regard to a fact-intensive issue reviewed at pages of this petition. BACKGROUND In this case, a magistrate judge applied what is known as the act of production doctrine to hold that appellant John Doe may be forced to assist in his prosecution by divulging information that exists only in his own mind if it exists at all. Under this act of production doctrine, the government may compel a person to hand over incriminating documents or items whose existence, location, and authenticity are already so certain as to be a foregone conclusion. Fisher v. United States, 425 U.S. 391, 411 (1976). The magistrate judge extended the 2

3 Case: Document: Page: 3 Date Filed: 05/25/2017 foregone conclusion rule beyond documents to reach human memory itself, commanding Mr. Doe to recall and divulge computer passwords for two hard drives whose content the authorities represent they have been unable to read due to Apple s FileVault encryption technology. 2 Because Mr. Doe has not done so, instead asserting his Fifth Amendment right against self-incrimination, he has now spent 20 months in jail without charges. Given human fallibility, the doctrinal innovation at issue here poses the gravest of dangers to the core values of the Fifth Amendment. Should authorities turn out to be wrong about a document s existence and location, a suspect can still protect his freedom by consenting to searches of his property and directing third parties to turn over anything held in his name. But when authorities are wrong about the content of a person s mind, that individual will nonetheless be subjected to indefinite incarceration, or worse, should a judge discern a foregone conclusion just as the magistrate judge did here, based solely on an out-ofcourt statement relating second- and third-hand information. The doctrine s 2 Several additional devices covered by the magistrate s order, such as an iphone 6, are no longer in controversy. As to all devices of these kinds, it bears noting that present-day encryption technology is considered vulnerable to emerging computing capacities. See Liam Pleven, Meet the Man Fighting to Protect Your Secrets, Wall Street Journal, Oct. 26, 2016 (online ed.) (discussing quantum computers presently under development). 3

4 Case: Document: Page: 4 Date Filed: 05/25/2017 haphazard application, even in its traditional domain, only aggravates this danger. See Hon. Paul S. Diamond, Federal Grand Jury Practice and Procedure 6.03, part (B)(3) ( The foregone conclusion doctrine has made for inconsistent decisions. ). 1. Assertion of privilege and judgment of contempt On March 30, 2015, a team of investigators working out of the Office of the District Attorney for Delaware County, Pennsylvania, executed a state warrant at Mr. Doe s home and seized numerous digital devices, including the hard drives now at issue. Several months later, authorities sought by means of a state grand jury to compel Mr. Doe to disclose the passwords needed to decipher the drives encrypted content. Following Mr. Doe s invocation of the Fifth Amendment privilege against self-incrimination, President Judge Chad F. Kenney of the Pennsylvania Court of Common Pleas, citing numerous federal decisions, ruled that Mr. Doe would not be compelled to enter the passwords himself or provide them to the grand jury. (App. 18). Rather than accept the state court s determination, investigators turned to federal court. A Homeland Security agent named David Bottalico applied for a new warrant, attaching an affidavit recounting what he had learned about the Delaware County investigation. (App ). This second- and third-hand 4

5 Case: Document: Page: 5 Date Filed: 05/25/2017 account related that the hard drives had at the time of their seizure been connected to an Apple Mac Pro computer. According to the affidavit, forensic analysis of the Mac Pro indicated a user had access to or had visited message boards whose titles were consistent with child pornography. (App ). Among the affidavit s other representations was that Mr. Doe s sister had told local investigators Mr. Doe once showed her images of child pornography on the computers seized. (App ). None of these images were found on the Mac Pro, nor did the affidavit describe any forensic evidence indicating they were on the hard drives. A federal warrant to search the hard drives issued on July 29, Several days later, an Assistant United States Attorney made an application pursuant to the All Writs Act for an order compelling Mr. Doe to produce the (previously seized) hard drives in an unencrypted state. (App. 53). Mr. Doe opposed the application, renewing the claim of Fifth Amendment privilege previously upheld in the Court of Common Pleas. In a motion to quash, he argued 3 The panel s opinion incorrectly suggests that Mr. Doe does not dispute the validity of the state or federal warrants referenced in the text. Slip op. 10 n.4; see id. 3. The warrants have not been challenged to date because nothing seized under their authority has been offered as evidence against Mr. Doe. Were anything to be offered, the warrants are subject to challenge on Fourth Amendment or other grounds. See Oral Argument, Sept. 7, 2016, digital recording at 36:25 to 36:50 (government counsel s acknowledgment of same). 5

6 Case: Document: Page: 6 Date Filed: 05/25/2017 that the government had not shown it was a foregone conclusion any child pornography files were on the hard drives, and that compelling him to divulge the passwords would unconstitutionally require him to use the contents of his mind against himself. (App. 77). Magistrate Judge Thomas J. Rueter rejected Mr. Doe s arguments and granted the government s application. The judge s factual analysis, in full, was as follows: Here, the Affidavit of Special Agent David Bottalico, supporting the application for a Search Warrant, establishes that (1) the Government has custody of the electronic devices; (2) prior to the Government s seizure, Mr. [Doe] possessed, accessed and owned all the electronic devices; and (3) there are images on the electronic devices that constitute child pornography. (Affidavit ) Therefore, under the foregone conclusion doctrine, requiring Mr. [Doe] to assist in the decrypting of those devices does not violate his privilege against self-incrimination. (App. 5). Pursuant to the magistrate s order, Mr. Doe appeared at a local district attorney s office where the hard drives had been secured. There, he entered passwords into a forensic interface set up by investigators. The passwords did not work. On the government s application, Judge Rueter thereafter ordered Doe to show cause. At ensuing hearings, a detective testified that Mr. Doe had stated at 6

7 Case: Document: Page: 7 Date Filed: 05/25/2017 the district attorney s office he could not recall the passwords. Mr. Doe declined to testify. Based on the failed password entries, other evidence put forward by the government, and Mr. Doe s decision not to give an on-the-record explanation for his present failure to comply, (App. 16), then District Judge L. Felipe Restrepo held him in civil contempt and, on September 30, 2015, remanded him to the custody of the Marshals Service. Despite not being charged with any crime, Mr. Doe has been jailed ever since. Due to his former career in law enforcement, he was first held in solitary confinement for more than a year, and is now incarcerated at a facility some distance from his home. 2. Appeal On appeal, Mr. Doe has raised two challenges. First, he contends that the magistrate judge s decryption order, slip op. 6, was not authorized under the All Writs Act. Second, he presses his claim that the Fifth Amendment bars the government from compelling him to disclose passwords to the hard drives. A panel of this Court (Vanaskie, J., joined by Jordan and Nygaard, JJ.) ruled against Mr. Doe on both points in a precedential decision entered March 20,

8 Case: Document: Page: 8 Date Filed: 05/25/2017 DISCUSSION The emergence of encryption technology has supplied a novel context for application of the Fifth Amendment right against self-incrimination. But there is nothing new about the cruel, simple expedient of forcing a person to make the case against himself. Miranda v. Arizona, 384 U.S. 436, 460 (1966). Appellant John Doe should not continue to be held in custody based on his invocation of the constitutional right not to be compelled to confess the content of his own mind in aid of prosecution. A. The Fifth Amendment issue was preserved. As a preliminary matter, the panel mistakenly regarded its review of the Fifth Amendment issue to be for plain error. Review is plenary, as there was no failure of preservation. Mr. Doe raised and briefed his claim of Fifth Amendment privilege in opposition to the government s All Writs application. (App ). Following the magistrate judge s adverse ruling, he suffered an order of contempt. In doing so, he brought the magistrate judge s ruling before this Court under the well settled rule that the viability of a civil contempt order hinges on the validity of the underlying injunction. John T. ex rel. Paul T. v. Delaware County Intermediate Unit, 318 F.3d 545, 559 (3d Cir. 2003) (citing cases). 8

9 Case: Document: Page: 9 Date Filed: 05/25/2017 The panel construed this case to be controlled by United States v. Rylander, 460 U.S. 752 (1983), see slip op. at 13-14, where the Court stated that a contempt proceeding generally does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed. 460 U.S. at 756 (internal quotation marks omitted). The panel s reliance on this language is misplaced. Rylander held that an issue may not be raised an issue for the first time in a contempt proceeding. Id. at 757 (emphasis added). Here, by contrast, Mr. Doe litigated the issue in advance of the contempt proceeding and then suffered the contempt in order to seek review in this Court. 4 B. The All Writs Act did not supply authority for issuance of an order commanding compelled disclosure of passwords. Preservation aside, rehearing en banc is warranted as to each of two issues. One is the government s improper resort to the All Writs Act in lieu of the grand jury procedure to which federal law generally commits the issuance of compulsory 4 The panel s opinion notes the absence of a separate appeal from the magistrate judge s ruling at the time of the ruling. Slip op. at 13 & n.6 (citing United States v. Polishan, 336 F.3d 234, 240 (3d Cir. 2003)). No such appeal was required. Polishan addresses criminal cases. 336 F.3d at The present matter is not a criminal case, as no indictment, information, or complaint has been filed. United States v. Smith, 776 F.2d 1104, 1112 (3d Cir. 1985). 9

10 Case: Document: Page: 10 Date Filed: 05/25/2017 process to give evidence in criminal investigations. 5 The Act authorizes federal courts to issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law. 28 U.S.C But where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling. Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U.S. 34, 43 (1985); Massey v. United States, 581 F.3d 172, 174 (3d Cir. 2009) (per curiam). Among the provisions of law that may bar recourse to the All Writs Act are the Federal Rules of Criminal Procedure. Carlisle v. United States, 517 U.S. 416, 429 (1996). Here, the issue at hand is committed to the grand jury procedure enshrined in Rules 6 and 17 of the Federal Rules of Criminal Procedure, and delimited by provisions including 28 U.S.C Under Rule 6(a), the district court must summon a grand jury [w]hen the public interest so requires. Rule 17 authorizes and provides for the enforcement of grand jury subpoenas commanding witnesses to give evidence, be it in the form of information, documents, or other matter. Fed. R. Crim. P. 17(a), (c); In re Grand Jury Proceedings, 507 F.2d 963, 964 n.2 (3d 5 In view of the panel s analysis, see slip op. 10, the issue is pressed here as a matter of non-jurisdictional error, and need not be reached as a condition of addressing the Fifth Amendment issue addressed in Part C infra. 10

11 Case: Document: Page: 11 Date Filed: 05/25/2017 Cir. 1975). The procedure also affords a number of protections to witnesses, including limitations upon public disclosure, see Fed. R. Crim. P. 6(e); a motion remedy by which to seek quashal or modification of a subpoena, see Fed. R. Crim. P. 17(c)(2); and a maximum penalty of 18 months confinement for failing without good cause to comply, see 28 U.S.C. 1826(a). The panel found no error in the government s circumvention of this statutory regime, stating that grand jury subpoenas are not the exclusive means by which the Government may collect evidence prior to indictment. Slip op. 9. That observation is not germane, in that the issue here is not one of collecting evidence. The government has already seized the devices and inspected their content. What it now seeks is to compel Mr. Doe to translate that content for it in particular, to supply passwords that would enable the government to decipher the encrypted data. Even were this disclosure of information properly understood as an act of production, but see infra Part C, the point is the government seeks to compel Mr. Doe to act as a witness, not stand aside while a warrant is executed. Such compulsion, when sought in advance of potential criminal charges, is the domain of the grand jury. Indeed, the government has itself previously relied upon grand juries to compel disclosure of passwords needed to decipher encrypted content. See In re 11

12 Case: Document: Page: 12 Date Filed: 05/25/2017 Grand Jury Subpoena Duces Tecum Dated Mar. 25, 670 F.3d 1335 (11th Cir. 2012); In re Grand Jury Subpoena to Sebastian Boucher, No. 06-mj-91, 2009 WL , at *1 (D. Vt. Feb. 19, 2009). Neither in those cases nor this one has the government contended that the grand jury procedure is inadequate. The only conclusion to be drawn is that the government has found that procedure inconvenient or less appropriate than resort to the All Writs Act. Pennsylvania Bureau of Correction, 474 U.S. at 43. That is precisely the end run the Act does not authorize. Ibid. The panel analyzed the All Writs issue largely in terms of United States v. New York Telephone Co., 434 U.S. 159 (1977), where the Court upheld an order commanding a closely regulated utility to facilitate authorities installation of a pen register on a telephone line. 434 U.S. at 174. There, however, the telephone company was not required to give evidence, be it in the form of information, documents, or items, but rather to afford technical assistance in the use of its own facilities. It would not have been within the purview of a grand jury to command such off-site assistance. Cf. Doe v. United States, 487 U.S. 201, 205 n.3 (1988). Because the particular issue at hand in New York Telephone was not committed to the grand jury, there was not the bar upon recourse to the All Writs Act that exists here. 12

13 Case: Document: Page: 13 Date Filed: 05/25/2017 C. Rehearing is warranted to vindicate the constitutional right against self-incrimination. An even more fundamental error calling for rehearing is the conclusion that a suspect may be forced to disclose a password from memory. Slip op That conclusion transgresses the constitutional guarantee that no person may be compelled in any criminal case to be a witness against himself. U.S. Const. amend. V. Whether a suspect be made to disclose the password by speaking it or typing it into a machine, the forced extraction of such information entails resort to cruel and unjust methods that are offensive to human rights everywhere. In re Grand Jury Proceedings, 632 F.2d 1033, 1043 n.16 (3d Cir. 1980) (citation omitted). A disclosure is testimonial, and thus protected by the Fifth Amendment right against self-incrimination, when it communicates knowledge or other contents of [one s] own mind. Doe, 487 U.S. at 211 (quoting Curcio v. United States, 354 U.S. 118, 128 (1957)). A person cannot be compelled, for example, to incriminate himself by telling investigators where records will be found. Curcio, 354 U.S. at 128. That is true even if the person is the records legally designated custodian and has no Fifth Amendment right to withhold the documents themselves. Ibid. 13

14 Case: Document: Page: 14 Date Filed: 05/25/2017 Compulsion to disclose a password is analogous to compulsion to tell investigators where records will be found. In each instance, the suspect is made to recall and explicitly communicate his own knowledge in order to lead investigators to evidence otherwise hidden from view. The Fifth Amendment categorically protects against such extortion of information from the accused. Doe, 487 U.S. at 210 n.9 (quoting Couch v. United States, 409 U.S. 322, 328 (1973)); see United States v. Hubbell, 530 U.S. 27, 43 (2000). The Supreme Court has repeatedly illustrated this principle by allusion to the rule that a suspect could not be made to furnish the memorized combination to [a] wall safe so that investigators may access its contents. Doe, 487 U.S. at 210 n.9; Hubbell, 530 U.S. at 43. It is hard to imagine guidance more directly on point. The primary difference between compelled disclosure of the combination to a safe and the password to a computer is that the computer password exposes to investigators a far greater mass of private and mostly irrelevant information. The panel did not undertake to distinguish a memorized combination to a safe from a memorized password. Without citing this authority, it skipped to the inapposite line of precedent comprising the act of production doctrine and its foregone conclusion rule. This was a category mistake. Framing the issue as a matter of producing devices in an unencrypted state, as the government does, 14

15 Case: Document: Page: 15 Date Filed: 05/25/2017 is an ingenious euphemism. Mr. Doe cannot produce the hard drives, or the data stored on them, because the government already has both. What the government demands is that he translate the data for use against himself. He has now been confined for 20 months in a deliberate effort to coerce him to call upon his own memory, such as it is, and communicate information that investigators believe will lead them to the evidence they seek. (App. 17). Compulsion to engage in this mental process is not the same as compulsion to surrender an item. Rather, extraction of the password represents an assault upon the inviolab[le] human personality that it is the Fifth Amendment s purpose to protect. Murphy v. Waterfront Commission, 378 U.S. 52, 55 (1964). Rehearing should be granted to vindicate this basic and vital point of American law. 6 6 Counsel acknowledges that the weight of authority is in accord with the panel in presuming that compulsion to communicate a password from memory should be analyzed under the act-of-production doctrine. See, e.g., In re Grand Jury Subpoena Duces Tecum Dated Mar. 25, 670 F.3d 1335 (11th Cir. 2012); Commonwealth v. Gelfgatt, 11 N.E.3d 605 (Mass. 2014). At least one court, however, has applied the correct rule. See United States v. Kirschner, 823 F. Supp. 2d 665, 669 (E.D. Mich. 2010) (subpoena ad testificandum); see also Commonwealth v. Baust, 89 Va. Cir. 267, at *3-*4 (Va. Cir. Ct. 2014). The courts extension of the act-of-production doctrine based on the government s ingenious framing is surprising, given that the doctrine is regarded as less than compelling even within its traditional domain. See, e.g., Hubbell, 530 U.S. at 49 (Thomas, J., concurring) (inviting reconsideration of doctrine); Diamond, Federal Grand Jury Practice and Procedure, supra page 4, at 6.03, part (B)(3). 15

16 Case: Document: Page: 16 Date Filed: 05/25/2017 D. The magistrate judge plainly erred in finding it a foregone conclusion that child pornography is on the hard drives. Finally, Mr. Doe invites the panel to reconsider its conclusion that the magistrate judge did not plainly err in finding it a foregone conclusion that child pornography is stored on the hard drives. Slip op To demonstrate a foregone conclusion, the government must show it knows, as a certainty, that each of the myriad documents demanded in fact is in the [suspect s] possession or subject to his control. Matter of Grand Jury Empanelled Mar. 19, 680 F.2d 327, (3d Cir. 1982), affirmed in relevant part sub nom United States v. Doe, 465 U.S. 605 (1984). Surely nothing can be known to a certainty based solely on an ex parte warrant affidavit, much less the one on which the magistrate judge relied here. That affidavit recounted largely second- and third-hand information. The most significant of its representations Mr. Doe s sister s report has now proved inaccurate as regards the hard drives, which she admitted were not necessarily where the child pornography she claimed to have viewed was stored. (App , ). What is more, the affidavit uses qualified language that stops short of stating a user of the Mac Pro had ever in fact visited a message board containing names suggestive of child pornography. (App (logs indicated the user had access to or had visited such message boards)). The affidavit also does not 16

17 Case: Document: Page: 17 Date Filed: 05/25/2017 represent that forensic analysis indicated a user to have downloaded child pornography. 7 As to later testimony regarding references on the Mac Pro to 20,000 content hash keys on the hard drives, see slip op. 5, the opinion properly recognizes that this testimony was not before the magistrate judge and accordingly does not factor in review of his conclusion for plain error. See slip op Moreover, as Mr. Doe has set forth, e.g., Reply Br. 15, the government s forensic expert did not testify that these content hash keys, which are purely textual matter, show a user downloaded corresponding image files. (See App. 350). The most the expert ventured was his best guess. (App. 346). The government here fell far short of demonstrating that it knows to a certainty child pornography is stored on the drives. Even under the foregone conclusion rule, it was plain error to compel Mr. Doe to supply passwords for the encrypted devices. 7 The only image on the Mac Pro described in the affidavit depicted a pubescent girl wearing a bathing suit, (App ), which does not qualify as child pornography notwithstanding an unidentified investigator s view that she was in a sexually suggestive position, (id.). See 18 U.S.C. 2256(2), (8). 17

18 Case: Document: Page: 18 Date Filed: 05/25/2017 CONCLUSION For the reasons stated, Mr. Doe respectfully prays that rehearing be granted. Respectfully submitted, /s/ Keith M. Donoghue KEITH M. DONOGHUE Assistant Federal Defender BRETT G. SWEITZER Assistant Federal Defender Chief of Appeals LEIGH M. SKIPPER Chief Federal Defender 18

19 Case: Document: Page: 19 Date Filed: 05/25/2017 STATEMENT OF COUNSEL PURSUANT TO LOCAL RULE 35.1 I express a belief, based on a reasoned and studied professional judgment, that this appeal involves questions of exceptional importance, namely: (1) whether a suspect may be compelled to disclose a computer password over a claim of Fifth Amendment privilege; and (2) whether any order commanding disclosure of a password may be obtained under the All Writs Act in lieu of a grand jury proceeding. /s/ Keith M. Donoghue KEITH M. DONOGHUE DATE: May 25, 2017

20 Case: Document: Page: 20 Date Filed: 05/25/2017 CERTIFICATE OF COMPLIANCE I, Keith M. Donoghue, Assistant Federal Defender, Federal Community Defender Office for the Eastern District of Pennsylvania, hereby certify that pursuant to Federal Rules of Appellate Procedure 35(b)(2) & 40(b) effective December 1, 2016, appellant s petition for rehearing conforms to the word limits because this petition contains 3,893 words. This petition also complies with the typeface requirements and the type style requirements, see Fed. R. App. P. 32(g)(1), because this petition has been prepared in a proportionally spaced typeface using Word 2010 for Windows 7 word count software in font size 14, type style Times New Roman. /s/ Keith M. Donoghue KEITH M. DONOGHUE DATE: May 25, 2017

21 Case: Document: Page: 21 Date Filed: 05/25/2017 CERTIFICATE OF SERVICE I, Keith M. Donoghue, Assistant Federal Defender, Federal Community Defender Office for the Eastern District of Pennsylvania, hereby certify that I have electronically filed and served a copy of Appellant s Petition for Panel Rehearing and/or Rehearing En Banc Pursuant to Fed. R. App. P. 35(b) and 40(a) upon Filing Users Nathan Judish, Esq., and Michelle Rotella, Esq., through the Third Circuit Court of Appeals Electronic Case Filing (CM/ECF) system. DATE: May 25, 2017 /s/ Keith M. Donoghue KEITH M. DONOGHUE