The facts of the case, In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, are as follows. The government served a subpoena duces tecum on the suspect (“Doe”), compelling him to produce the unecrypted contents located on the hard drives of his laptop computers and five external hard drives. In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, No. 11-12268, 2012 WL 579433, at *1 (11th Cir. Feb. 23, 2012). Doe refused to comply with the subpoena, instead invoking his Fifth Amendment right against self-incrimination. Id. The U.S. Attorney applied to the district court for an order that would grant Doe immunity and require him to respond to the subpoena. Id. The district court rejected Doe’s explanations, judged him to be in contempt of court, and ordered him incarcerated. Id.

On appeal, the 11th Circuit arrived at two overall conclusions. First, [the district court] erred in concluding that Doe’s act of decryption and production would not constitute testimony. Second, in granting Doe immunity, it erred in limiting its immunity, under 18 U.S.C. §§ 6002 and 6003, to the Government’s use of his act of decryption and production, but allowing the Government derivative use of the evidence such act disclosed. Id. at 3. I will be focusing on the first issue—the issue of “whether the act of production may have some testimonial quality sufficient to trigger Fifth Amendment protection when the production explicitly or implicitly conveys some statement of fact.” Id. at 4.

The Court stated that there were two ways for the government to avoid implicating the Fifth Amendment right. First, Doe’s decryption and production of the hard drives would have to be a physical act, not a testimonial act that “requires the use of the contents of his mind.” Second, the government would have to already know what is inside the drives. The government would only be asking Doe to produce the decrypted drives; the knowledge of what is inside would have only been a foregone conclusion. However, the Court held that the government failed in satisfying either of these methods. The Court stated that it reached its holding for this issue by concluding that “(1) Doe’s decryption and production of the contents of the drives would be testimonial, not merely a physical act; and (2) the explicit and implicit factual communications associated with the decryption and production are not foregone conclusions.” Id. at 8.

While the Court’s analysis mostly seems correct, I have a few problems with some parts of the analysis. First, regarding the distinction between a physical act and a testimonial act, the Court lists some implied factual statements that determine whether or not Doe’s decryption and production of the hard drives would be testimonial. The Court states that “the decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt those files.” Id. The latter two factors can certainly be classified as making the use of one’s mind, but I would argue that the first factor should not be involved if Doe were to decrypt and produce the hard drives. By producing the decrypted hard drives, Doe would be showing that he had possession, control, and access to the hard drives, and he would also be showing that he had the ability to decrypt the files. In regards to the first factor, however, Doe would not necessarily be showing that he had knowledge of the existence and location of potentially incriminating files. The government basically just needs the decryption passwords so it can access the encrypted partitions inside the hard drives.

Second, the Court uses a useful analogy in comparing Doe’s situation to surrendering a combination as opposed to surrendering a key; however, I believe that the Court’s analogy should focus on a different point. The Court believes that producing a key is a physical act while producing a combination is a testimonial act that requires use of the contents of one’s mind. The Court analogized Doe’s situation to producing a combination, saying that “[r]equiring Doe to use a decryption password is most certainly more akin to requiring the production of a combination because [it demands] the use of the contents of the mind, and the production is accompanied by the implied factual statements noted above that could prove to be incriminatory.” Id. To further explain its point, the Court referred to the Supreme Court’s explanation of this distinction in U.S. v. Hubbell:

“The assembly of those documents was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox . . . The Government’s anemic view of respondent’s act of production as a mere physical act that is principally nontestimonial in character and can be entirely divorced from its “implicit” testimonial aspect so as to constitute a “legitimate, wholly independent source” . . . for the documents produced simply fails to account for these realities.” U.S. v. Hubbell, 530 U.S. 27, 43 (2000).

My problem with the Court’s analysis here is that I believe the focus should simply be on whether or not implied factual statements are involved or not. A key vs. combination analogy seems to wrongly focus on a physical production of a key as opposed to a mental production of a combination, and whether there are implied factual statements seems to be an additional factor to consider when that should be the primary factor.

Putting this proposal into action, if compelling the production of a key or combination to some kind of safe ends up involving implied factual statements, then such an act of production would be testimonial. For instance, in this case, the key factor is whether or not the government actually knows that Doe has “knowledge of the combination”—for instance, whether Doe has the decryption passwords for the hard drives. If the government is not sure whether or not the suspect has knowledge of the combination, then the act of production should qualify as a testimonial act because such an act would be accompanied by the implied factual statement that the suspect knew the combination (e.g., a decryption password in this case). However, if the government knows that the suspect knows the combination, then producing the combination should qualify as a physical nontestimonial act. This would be functionally similar to asking a suspect to produce a key—there is no accompanying implied factual statement, and the combination would essentially be acting as a “key.”

Under this proposed focus, then, it is the fact that the government does not know for sure whether or not Doe has “the combination to the safe” that makes Doe’s decryption and production of the hard drives testimonial—producing the decrypted hard drives would bring in the implied factual statement that Doe knew the decryption passwords. In conclusion, the focus should simply be on whether or not implied factual statements are involved or not; this key point better fulfills the purpose behind the standard of “requiring the use of the contents of one’s mind.”

Witnesses in the United States may choose to exercise their right to “plead the Fifth,” or refuse to answer a question because the response could provide self incriminating evidence of an illegal act. But how strong is this right if a prosecutor is already aware of where a witness was, what they saw, what they heard, and in some ways even what they were thinking at any given time on any given day? I do not refer to torture, truth serums, or the recent accomplishment of Berkeley scientists in creating visual pictures from brain waves. Rather, I refer to smart phones and the growing field of “reality mining” or “mobile phone sensing.”

The Progression of Mobile Phone Technology

Mobile phones had a humble beginning in 1973. Unlike modern iterations, the first mobile phone was bulky, difficult to transport, and had but one function; it allowed you to make a phone call. Technology has rapidly progressed from 1973, and today’s smart phones come rich with functionality through the use of embedded sensors. For example, the Apple iPhone comes equipped with an accelerometer, gyroscope, GPS, digital compass, ambient light detection, and dual microphones and cameras. These sensors give the iPhone the ability to speak, listen, locate, give directions, detect movement etc…  The new iPhone4S also responds to natural language queries.

“Mobile phone sensing” makes use of these digital senses to enable smart phones to become even more dynamic. Dartmouth College’s Smartphone Sensing Group
describes it as “turning the everyday smart phone into a cognitive phone by pushing intelligence to the phone and the computing cloud to make inferences about people’s behavior, surroundings and their life patterns.” The practical applications of this field seem enormous:

• Researchers at Dartmouth college describe examples such as 1) using accelerometer data to automatically recognize different activities (e.g., running, walking, standing), 2) combining accelerometer data with location estimates from a phone’s GPS to recognize the mode of transportation such as walking, biking, driving, taking a bus or riding the subway and 3) continuously collecting audio from a phone’s microphone to “classify a diverse set of distinctive sounds associated with a particular context or activity in a person’s life, such as using an automated teller machine, being in a particular coffee shop, having a conversation, listening to music, making coffee, and driving.” Amongst a laundry list of other applications, this data can be translated into suggestions for how to avoid traffic, increase social networking, and for personal health care by tracking your physical activity or the number of times you’ve visited your doctor’s office.
• An Oregon based technology company, Digimarc, has developed an application that uses a mobile phone’s camera and microphone to “detect digital watermarks encoded into magazines, newspapers, packaging and other printed materials, as well as identify songs in music and read QR codes.” Mobile phones can then recognize what it is that a user is looking at or listening to and make personalized suggestions.
• Sandy Pentland (a leader in the field of mobile phone sensing and director of MIT’s Human Dynamics Laboratory) predicts that mobile phone sensing may be able to give clues to diagnosing depression by detecting changes in speech patterns, or using a phones motion sensors to reveal slight changes in gait, potentially acting as an early indicator of ailments such as Parkinson’s disease.

Smart Phone as a Witness

Yet these examples may not be the limit to what mobile phone sensing may be used for in the future. It seems possible that future criminal (or civil) trials may not need live witnesses so long as the sensor data from an accused individual’s smart phone was admissible as evidence. Before a word was said, it could be known where the individual was, who they were with, what they were looking at, listening to, talking about etc… Not just the day that a crime was committed, but days, weeks, or months in the past. These seem to be the personal experiences that individuals were traditionally allowed to protect to avoid self-incrimination.

Conclusion

The Fifth Amendment is concerned with what an individual must be witness to after a crime is committed, rather than before. Ex ante choices such as planning to commit a crime do not bar a person’s right to avoid self-incrimination. Thus a person who purchases a smart phone in order to utilize the advantages of mobile phone sensing (or for whatever other reason) should not diminish their rights under the Constitution. When we look ex post, the experiences that a phone interprets are the users, the senses that it has are digital extensions of the individuals. Those experiences and senses is what the Fifth Amendment is concerned with and should not be allowed as evidence of a person’s guilt.