## Facts

- Federal investigators linked a YouTube account suspected of distributing child pornography to IP addresses associated with hotels in Florida and identified “John Doe” as the common registrant.
- Pursuant to a search warrant, officers seized seven digital storage devices from Doe’s hotel room, including two laptops and five external hard drives.
- Forensic examiners found that portions of the seized media were encrypted and inaccessible.
- A federal grand jury subpoena duces tecum ordered Doe to produce the “unencrypted contents” of the seized media and any containers or folders necessary to access them (effectively requiring decryption).
- The district court granted immunity limited to the act of production of the unencrypted contents, expressly excluding immunity for the government’s derivative use of evidence obtained from the decrypted contents.
- Doe refused to comply, invoking the Fifth Amendment on the ground that decryption and production would be testimonial and that the limited immunity was insufficient; he also asserted he could not decrypt the drives.
- The district court held Doe in civil contempt and ordered incarceration to coerce compliance, and Doe appealed.

## Issues

1. Whether compelling Doe to decrypt and produce the unencrypted contents of encrypted digital media would be a testimonial act protected by the Fifth Amendment.
2. Whether immunity limited to the act of production, while permitting derivative use of evidence obtained from the decrypted contents, satisfies 18 U.S.C. § 6002 and extinguishes the Fifth Amendment privilege.
3. Whether the “foregone conclusion” doctrine applies where the government cannot identify the encrypted contents with reasonable particularity.

## Decision

- The Eleventh Circuit reversed the civil-contempt order.
- The court held that, on this record, compelling Doe to decrypt and produce the unencrypted contents would be testimonial because compliance would implicitly communicate facts the government had not shown it already knew with reasonable particularity.
- The court held the immunity order was inadequate because it did not provide the use-and-derivative-use immunity required by 18 U.S.C. § 6002 to displace the Fifth Amendment privilege.
- The court did not resolve Doe’s claimed inability to decrypt, concluding the Fifth Amendment issue was dispositive under the existing subpoena and immunity order.

## Legal Principles

- The Fifth Amendment may protect an act of production when compliance has compelled communicative aspects, including implicit admissions of the existence of responsive material, the witness’s possession or control, and authentication.
- Compelled decryption can be testimonial where it communicates that the witness knows the password or key and can access the contents, and where production would supply evidentiary links not previously established by the government.
- Under the “foregone conclusion” doctrine, an act of production is not testimonial only if the government shows with reasonable particularity that it already knows the existence, possession or control, and authenticity of the specific materials sought such that production adds little or nothing.
- Immunity compelling production over a valid Fifth Amendment claim must be coextensive with the privilege; under 18 U.S.C. § 6002, this requires use-and-derivative-use immunity, not merely immunity for the act of production.

## Conclusion

The Eleventh Circuit held that compelling decryption and production of unknown encrypted contents would be testimonial absent a foregone conclusion showing, and that act-only immunity excluding derivative-use protection did not satisfy § 6002 or eliminate the Fifth Amendment privilege, requiring reversal of the contempt order.


In re Subpoena Duces Tecum, 670 F.3d 1335 (11th Cir. 2012)