Over the last several years, I’ve posted a handful of short blog entries about the topic of compelling a criminal defendant to surrender a passphrase to an encrypted volume or hard-drive. These entries concern the three cases of re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, United States v. Fricosu, (D.Colo, 2012), and In re Grand Jury Subpoena (Boucher), 2009 U.S. Dist. Lexis 13006 (D. Vt., 2009).
I have developed the opinion —admittedly, more on hunch than scholarly research— that a defendant should not be able to knowingly withhold a passphrase or password to an evidence trove any more than he should be permitted to hang on to a physical key that could be used to open a safe that the Government has a valid warrant to search, and which is believed to contain evidence.
Unfortunately, I have found myself on the wrong side of this issue. My colleagues Sharon Nelson and Craig Ball disagree with me on some aspects of the issue. And my position is seemingly at odds with the Eleventh Circuit in Grand Jury Subpoena Duces Tecum Dated March 25, above, a decision that Professor Orin Kerr described as mostly correct (although I note that the Eleventh Circuit did distinguish Boucher, and recognize exceptions).
Setting aside, for the sake of this comment, the question of whether knowledge of the passphrase is both “testimonial” and “incriminating” for purposes of the Fifth Amendment (the very issues central to the aforementioned cases), or whether the knowledge of the passphrase should be distinguished from possession of a physical key, my belief has been based on a principle that parties to either criminal or civil litigation should simply not be permitted to purposefully withhold admissible evidence from each other. Professor Arthur Miller, the great civil procedure legal scholar calls this the “cardinal, basic, philosophical principle.” “Since we’re trying to get at the truth,” he continues, “You must give every litigant equal access to all relevant data . . . It’s as American as apple pie.” Arthur R. Miller, Civil Procedure, Sum & Substance audio lecture series (1999).
Now, before I continue, let’s recognize I have purported to be an axiom for what it is: incorrect. In fact, there are several basis under our system of law when a party is permitted to withhold otherwise relevant, admissible evidence. We call it “privilege.” Privilege is that annoying rule of law (I’m being facetious here) that, “to protect a particular relationship or interest, either permits a witness to refrain from giving testimony he otherwise could be compelled to give, or permits someone (usually one of the parties) to prevent the witness from revealing certain information” Waltz & Park, Evidence, Gilbert Law Summaries, § 635. Perhaps the most common example of it is the attorney-client privilege. See Upjohn Co. v. United States, 449 U,S, 383, 389 (1981) (acknowledging the attorney-client privilege as “the oldest of the privileges for confidential communications known to the common law”).
But even the hallowed attorney-client privilege has its limits. Under the civil fraud and criminal fraud exceptions, an otherwise privileged communication becomes discoverable. See, e.g., United States v. Zolin, 491 U.S. 554, 562–63 (1989) (stating goals of attorney-client privilege are not served by protecting communications made for purpose of getting advice for commission of crime or fraud). And see Deborah F. Buckman, Annotation, Crime-Fraud Exception to Work Product Privilege in Federal Courts, 178 A.L.R. FED. 87, § 2[a] (2002).
Encryption as Evidence Destruction
Craig Ball often reminds his audiences of the three ways to destroy electronically stored information: (1) overwrite the bytes with new data; (2) physically destroy the media upon which the data was written; or (3) use strong encrypt on the data and forget the passphrase. Thus, in my assessment, if an individual encrypts evidence while engaging in the commission of a crime, it is tantamount to flushing drugs down the toilet, throwing the murder weapon in a lake, or silencing a witness. These are independent criminal acts, separable from the underlying charges. Likewise, a civil litigant, who encrypts evidence after the duty to preserve has attached (articulated best in Zubulake v. UBS Warburg, 220 F.R.D. 212, 218 (S.D.N.Y. 2003)(“Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a litigation hold’ to ensure the preservation of relevant documents”)), engages in spoliation that may be punishable. Therefore, I contend, by using encryption, a defendant or litigant may engaged in spoliation of evidence —albeit undoable— which may be subject to independent criminal liability, civil sanctions, or an adverse jury instruction.
Notice, these phrases in bold, above, establish mens rea, (i.e., intent — purposeful or knowing conduct) that the actor was using encryption in the furtherance of a crime, or to destroy evidence to thwart a law enforcement investigation. An instructive analog may be the safe harbor provision, Fed.R.Civ.P. Rule 37(f), as applied to electronic discovery in civil cases. The provision shields a party who cannot produce evidence lost as a result of the routine, good faith operation of an electronic information system. In other words, if an individual was using whole-disk encryption not to obfuscate criminal activity, but rather because he was trying to protect against identify theft, or because the system came with it by default, there is no intent, hence no criminal culpability. Another helpful analog might be found in Arizona v. Youngblood, 488 U.S. 51, 58 (1988), where the U.S. Supreme Court held charges may be dismissed based upon evidence lost or destroyed by the Government, which is deemed to be only potentially exculpatory (as opposed to apparently exculpatory), only if defendant can show the evidence was destroyed in bad faith.
But, perhaps the best authority addressing the mens rea requirement is probably that required for the 18 U.S.C. § 1503 (conduct that, among other things, corruptly endeavors to obstruct or impede the due administration of justice): To sustain its burden of proof, the government must “show that the defendant knowingly and intentionally undertook an action from which an obstruction of justice was a reasonably foreseeable result. Although the government is not required to prove that the defendant had the specific purpose of obstructing justice, it must establish that the conduct was prompted, at least in part, by a corrupt motive.” United States v. Barfield, 999 F.2d 1520, 1524 (11th Cir. Ala. 1993) (internal quotations omitted). Unlike the duty-to-preserve in civil cases, which requires only reasonable anticipation of litigation, the federal criminal context requires there to have been a pending judicial proceeding known to defendant at the time. See, e.g., U.S. v. Fineman, 434 F. Supp 197 (E.D.Pa 1977) (In applying the obstruction of justice statute to issues of destruction of documents, federal courts generally have not required that a subpoena have issued. Rather, it is sufficient for an obstruction conviction that the defendant knew that a grand jury was investigating possible violations of federal law and intentionally caused destruction of the incriminating document.). In fact, 18 U.S.C. § 1503 has even been applied to prosecute those who, in a civil case, were accused of willfully destroying documents subject to discovery. U.S. v. Lundwall, 1 F.Supp.2d 249 (S.D.N.Y.,1998).
Note that my theory is not that the presence of encryption is somehow admissible as relevant in demonstrating defendant’s mental state or aptitudes, as it appears to have been in State v. Levie, 695 N.W.2d 619 (Minn.App. 2005) (“the existence of an encryption program on [defendant’s] computer was at least somewhat relevant to the state’s case against him,” and the jury was allowed to consider it). See also Jessica Murphy, Swiss Cheese That’s All Hole: How Using Reading Material To Prove Criminal Intent Threatens The Propensity Rule, 83 Wash. L. Rev. 317 (May 2008). Rather, my theory is that, even if a court finds that a defendant cannot be compelled to aid in his prosecution by surrendering a passphrase (because doing so would be testimonial and incriminating), a defendant may nevertheless be criminally liable for evidence spoliation. Further, when evidence is spoliated, a factfinder may be entitled to presume that the evidence was unfavorable to the spoliator. See Washington Gas Light Co. v. Biancaniello, 87 U.S. App. D.C. 164, 183 F.2d 982 (D.C. Cir. 1950) (Willful destruction of evidence by a party properly raises the inference that the materials destroyed were adverse to the party which brings about the destruction); Brown & Williamson Tobacco v. Jacobson, 827 F.2d 1119, 1134 (7th Cir. 1987) (“A court and a jury are entitled to presume that documents destroyed in bad faith while litigation is pending would be unfavorable to the party that has destroyed the documents.”); Dale A. Oesterle, A Private Litigant’s Remedies for an Opponent’s Inappropriate Destruction of Relevant Documents, 61 Tex. L. Rev. 1185, 1232-39 (1983) (“[A] party’s bad faith destruction of relevant documents is an admission by conduct that he believes his case is weak and cannot be won fairly.”). See generally 2 John Henry Wigmore, Evidence §291 (James H. Chadbourn rev. ed., 1979) (discussing evidence spoliation).
The right to privacy as, Justice Douglas recognized in Griswold v. Conneticut, arises from “penumbras, formed by emanations from those [specific] guarantees . . . in the Bill of Rights.” And the Bill of Rights operates as a constraint on the Government. But, those penumbrae do not, in my view, confer a magical privileged status to file or disk encryption under the rubric of privacy, when, in certain limited circumstances, such encryption is really just evidence spoliation.
As a forensics examiner, I am already seeing and foresee a higher frequency of criminal and civil investigations thwarted by the use of file or disk encryption and the privilege under the Fifth Amendment. Absent new statutes addressing the misuse of encryption technology, a prosecutor should closely examine the Eleventh Circuit decision to see if his or her case falls under the limited exceptions that would require defendants to surrender the passphrase under the penalty of remedial contempt. Alternatively or conjunctively, prosecutors should determine whether the use of encryption by defendants fall within the scope of an applicable federal or state statute for destroying evidence in the furtherance of a crime, or incident to a criminal investigation, where there is extrinsic evidence of a corrupt motive.