Passwords and the 5th Amendment Privilege

In two earlier posts I analyzed Sebastien Boucher’s efforts to rely on the 5^th Amendment privilege against self-incrimination as his justification for refusing to give law enforcement officers the key used to encrypt part of the files on his laptop. Until now, those are the only reported case I could find that dealt with the 5^th Amendment privilege’s applicability to encryption keys and passwords.

The U.S. District Court for the Eastern District of Michigan recently addressed this issue in U.S. v. Kirschner, 2010 WL 1257355 (2010). Here, according to the district court judge, is how the issue arose:

On December 10, 2009, the Federal Grand Jury issued an indictment charging Defendant Thomas Joseph Kirschner with three felony counts:

Count One: 18 U.S. Code § 2252A(a)(2)(A)-Receipt of Child Pornography on or about May 9, 2009, `including by computer.’

Count Two: 18 U.S.C. § 2252A(a)(2)(A)-Receipt of Child Pornography on or about June, 2009, `including by computer.’

Count Three: 18 U.S.C. § 2252A(a)(2)(A)-Receipt of Child Pornography on or about August 2009, `including by computer.’

On November 20, 2009, an Assistant U.S. Attorney (`AUSA’) issued a `subpoena to Defendant Kirschner to testify before a Grand Jury’ on December 8, 2009. The subpoena required Defendant `to provide all passwords used or associated with the . . . computer . . . and any files.’

On December 7, 2009, Defendant Kirschner filed a Motion to Quash Grand Jury Subpoena asserting Defendant's Fifth Amendment privilege against self-incrimination.

On December 22, 2009, the Government filed a Response, which stated in the accompanying brief:

In order to examine the contents of the encryption file, the government issued a grand jury subpoena ordering Defendant to provide all passwords associated with its computer.

On February 11, 2010, Defendant filed a Reply.

U.S. v. Kirschner, supra. Rule 17 of the Federal Rules of Criminal Procedure governs the use of subpoenas in federal criminal practice. Rule 17(c)(2) states that “[o]n motion made promptly, the court may quash . . . the subpoena if compliance would be unreasonable or oppressive.” As Black’s Law Dictionary (8^th ed. 2004) explains, a motion to quash a subpoena asks the court to “nullify” it, i.e., declare the subpoena null and void and therefore unenforceable. So Kirschner was asking the court to quash the subpoena because he claimed that forcing him to comply with it would violate his 5^th Amendment privilege against self-incrimination. If forcing him to comply would violate his 5^th Amendment privilege, then that justifies quashing the subpoena as oppressive. In re August 1993 Grand Jury, 854 F.Supp. 1392 (U.S. District Court for the Southern District of Indiana 1993).

Before addressing the 5^th Amendment issue, the federal judge addressed another issue, one he raised on his own: whether the subpoena was “being utilized post-indictment to investigate additional charges.” U.S. v. Kirschner, supra. As the judge noted, a

`grand jury is given its broad investigative powers to determine whether a crime has been committed and an indictment should issue, not to gather evidence for use in cases in which indictments have already issued. Accordingly, both state and federal courts hold that it is an abuse of the grand jury process to use grand jury subpoenas `for the sole or dominating purpose of preparing an already pending indictment for trial.’

U.S. v. Kirschner, supra (emphasis added & quoting LaFave, Israel, King and Kerr, Handbook on Criminal Procedure (2d ed. 2007)). When the judge raised this issue at the hearing he held on Kirschner’s motion to quash the subpoena, that prompted this exchange with the Assistant U.S. Attorney (AUSA) handling the case:

The government concedes that the instant grand jury subpoena was issued to secure evidence of child pornography allegedly contained in Defendant Kirschner's computer, which spawned the three counts contained in the indictment:

AUSA: [I]t's our position that the grand jury is still investigating the contents of the encryption file.

COURT: It's the same computer.

AUSA: It is the same computer.

(Hr'g Tr., Feb. 16, 2010, p. 10.)

U.S. v. Kirschner, supra. The judge ultimately held that since the AUSA said he would “use the indicted defendant’s testimony solely to pursue a different, separate offense”, the government was not prevented from using a grand jury subpoena for this narrow purpose, but that he might have to revisit the issue later. U.S. v. Kirschner, supra.

In the instant case, the post-indictment grand jury questioning will relate to the same computer that provided the evidence for the existing charges, and likely the same type of criminal behavior. Does this evidence relate to a wholly different and separable offense? Stay tuned.

U.S. v. Kirschner, supra. The judge then took up the 5^th Amendment privilege issue:

Insofar as the subpoena is valid, can the Defendant refuse to testify based on his Fifth Amendment privilege against self-incrimination? Defendant contends that requiring him to testify before the grand jury pursuant to the subpoena issued by the government would violate his Fifth Amendment right against self-incrimination under the United States Constitution. The subpoena calls for the Defendant to testify to the password he utilizes for his computer. Defendant declines to testify invoking his Fifth Amendment privilege against self-incrimination.

U.S. v. Kirschner, supra. Here, as in the Boucher case, the issue was whether requiring Kirschner “to provide the password is a testimonial communication.” U.S. v. Kirschner, supra. As I explained in my posts on the Boucher case, to claim the 5^th Amendment privilege, you have to show that the government (i) is compelling you (ii) to give testimony that (iii) incriminates you, i.e., implicates you in the commission of a crime. The grand jury subpoena constitutes compulsion because Kirschner either has to (i) comply with it, (ii) refuse to comply with no justification and be locked up until he agrees to provide the password or (iii) successfully refuse to comply on the grounds that doing so would violate his 5^th Amendment privilege. If he can show that giving up the password requires him to “testify” in a fashion that incriminates him, he can claim the privilege and have the subpoena quashed, or declared null and void.

The Supreme Court has held, basically, that you’re giving testimony – testifying – when you’re communicating, i.e., when you’re revealing your knowledge of certain facts or sharing your thoughts or opinions with the government. U.S. v. Kirschner, supra. You can’t claim the 5^th Amendment privilege to refuse to surrender physical evidence such as your blood, hair or saliva; it only applies to communications, i.e., to something that look like what a witness does when she takes the stand at trial.

In addressing this issue, the Kirschner judge noted that in U.S. v. Doe, 487 U.S. 201 (1987), the Supreme Court said compelling someone “`to reveal the combination to [their] wall safe’” constitutes testimony within the scope of the 4<sup>th</sup> Amendment privilege. In this case, the AUSA “described the requested testimony [from Kirschner] in these terms: `It's like giving the combination to a safe.’” U.S. v. Kirschner, supra. That wasn’t a good way to describe it, because the judge then noted that the “Supreme Court has held that this type of procured testimony is protected by the . . . Fifth Amendment privilege.” U.S. v. Kirschner, supra. The judge also explained that “the government is not seeking documents or objects -- it is seeking testimony from the Defendant, requiring him to divulge through his mental processes his password-that will be used to incriminate him.” U.S. v. Kirschner, supra. He therefore granted Kirschner’s motion to quash the grand jury subpoena, which meant it became null and void and therefore unenforceable. U.S. v. Kirschner, supra.

As I explained in my posts on the Boucher case, that left the government with three options:

(1) Appeal this judge’s decision to the U.S. Court of Appeals for the Sixth Circuit.

(2) Give up on trying to use Kirschner’s computer as the source of evidence on which to base additional charges.

(3) Give Kirschner immunity for disclosing his computer passwords to the grand jury.

The government may go with (2), but I suspect they’re more likely to try (1). They could give Kirschner immunity for the act of disclosing the passwords, but if the government does that it can’t use the passwords themselves or any evidence derived from to charge and prosecute Kirschner for additional crimes. Section 6002 of Title 18 of the U.S. Code, which you can find here, allows the government to give someone immunity, which then strips them of the ability to claim the 5^th Amendment privilege and refuse to testify. As I noted in my Boucher posts, the premise is that if the government promises it won’t use what you say to prosecute you, then your testimony doesn’t “incriminate” you and you don’t need the 5^th Amendment privilege to protect you.

As I also noted in the Boucher posts, the problem the government faces in a case like this is that if it gives the suspect immunity to get the encryption key or passwords, it can’t use the key or the passwords or any evidence derived from them, i.e., any evidence they find when they access the encrypted or password-protected computer or computer media, against that person. So if the government doesn’t appeal this court’s ruling or if the U.S. Court of Appeals for the 6^th Circuit affirms that ruling, it means Kirschner doesn’t have to worry about the government using evidence that’s in his computer to prosecute him for new crimes . . . unless, of course, the government can somehow bypass his password protection.