In re Grand Jury Subpoena Duces Tecum

United States Court of Appeals for the Eleventh Circuit · 2012 · Criminal Procedure

670 F.3d 1335 (2012)

Updated July 27, 2026

Criminal ProcedureFifth AmendmentSelf-IncriminationGrand Jury SubpoenaAct of Production ImmunityDigital Encryptiontestimonial actdecryption

Facts

During a child pornography investigation, officers lawfully seized two laptops and five external hard drives from Doe. FBI forensic examiners determined that portions of the drives were encrypted with TrueCrypt but could not access those portions, and the Government's witness conceded he did not know whether the encrypted areas actually contained data or whether Doe could decrypt them. A grand jury subpoena required Doe to produce the unencrypted contents of the devices, and when Doe invoked the Fifth Amendment, the Government obtained an order granting immunity only for the act of production, not for derivative use of the decrypted contents. Doe still refused to decrypt the drives and was held in civil contempt.

Issue

Whether compelling Doe to decrypt and produce the contents of encrypted hard drives would violate the Fifth Amendment because the act of decryption and production is testimonial and not a foregone conclusion. Also, whether immunity limited to the act of production, but not derivative use of the decrypted contents, was sufficient to compel compliance.

Rule

An act of production is testimonial when compliance requires the use of the contents of the witness's mind to communicate facts such as the existence, location, possession, control, access, authenticity, or ability to produce the demanded material. Under the foregone conclusion doctrine, such an act is not testimonial only if the Government shows with reasonable particularity that, at the time of compulsion, it already knew those facts. If the act is testimonial, the Government may compel it only by granting immunity coextensive with the Fifth Amendment, which requires both use and derivative-use immunity under 18 U.S.C. § 6002.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Federal agents in Tampa seize an encrypted tablet from Lena Ortiz during a fraud investigation. A grand jury subpoenas Lena to unlock the tablet and produce all readable files, but the government can show only that the tablet belongs to her and that its storage is encrypted.

If Lena invokes the Fifth Amendment, which is the strongest argument that the subpoena cannot be enforced as issued?

Explanation. The majority distinguished between the contents of files, which are not themselves compelled testimony, and the act of decrypting and producing them, which may be testimonial if it uses the contents of the witness's mind. Here, compliance would implicitly admit knowledge of the files' existence, access, and control. Because the government knows only ownership and encryption, not with reasonable particularity whether files exist or whether Lena can access them, the foregone conclusion doctrine does not apply.