United States v. Apple Macpro Computer

• Decision Date: 20 March 2017
• Docket Number: No. 15-3537,15-3537
• Citation: 851 F.3d 238
• Parties: UNITED STATES of America v. APPLE MACPRO COMPUTER, Apple Mac Mini Computer, Apple i Phone 6 Plus, Ellular Telephone Western Digital My Book For Mac External Hard Drive, Western Digital My Book Velociraptor Duo External Hard Drive *John Doe, Appellant *(Pursuant to Rule 12(a), Fed. R. App. P.)
• Court: U.S. Court of Appeals — Third Circuit

851 F.3d 238

UNITED STATES of America

v.APPLE MACPRO COMPUTER, Apple Mac Mini Computer, Apple i Phone 6 Plus, Ellular Telephone Western Digital My Book For Mac External Hard Drive, Western Digital My Book Velociraptor Duo External Hard Drive

*John Doe, Appellant

*(Pursuant to Rule 12(a), Fed. R. App. P.)

No. 15-3537

United States Court of Appeals, Third Circuit.

Argued September 7, 2016

Filed: March 20, 2017

Keith M. Donoghue [ARGUED], Brett G. Sweitzer, Leigh M. Skipper, Federal Community Defender Office for the Eastern District of Pennsylvania, 601 Walnut Street, Suite 540 West Philadelphia, PA 19106, Counsel for Defendant-Appellant

Christopher C. Walsh, Adam Schwartz, Mark Rumold [ARGUED], Andrew Crocker, Electronic Frontier Foundation, 815 Eddy Street, San Francisco, CA 94109, Counsel for Amicus Curiae

Leslie Caldwell, Nathan Judish [ARGUED], Bernadette McKeon, Michelle Rotella, Office of the United States Attorney, 615 Chestnut Street, Suite 1250, Philadelphia, PA 19106, Counsel for Plaintiff-Appellee

Before: JORDAN, VANASKIE, and NYGAARD, Circuit Judges.

OPINION

VANASKIE, Circuit Judge.

This appeal concerns the Government's ability to compel the decryption of digital devices when the Government seizes those devices pursuant to a valid search warrant. The District Court found Appellant John Doe in civil contempt for refusing to comply with an order issued pursuant to the All Writs Act, 28 U.S.C. § 1651, which required him to produce several seized devices in a fully unencrypted state. Doe contends that the court did not have subject matter jurisdiction to issue the order and that the order itself violates his Fifth Amendment privilege against self-incrimination. For the reasons that follow, we will affirm the District Court's order.

I.

During an investigation into Doe's access to child pornography over the internet, the Delaware County Criminal Investigations Unit executed a valid search warrant at Doe's residence. During the search, officers seized an Apple iPhone 5S and an Apple Mac Pro Computer with two attached Western Digital External Hard Drives, all of which had been protected with encryption software.¹ Police subsequently seized a password-protected Apple iPhone 6 Plus as well.

Agents from the Department of Homeland Security then applied for a federal search warrant to examine the seized devices. Doe voluntarily provided the password for the Apple iPhone 5S, but refused to provide the passwords to decrypt the Apple Mac Pro computer or the external hard drives. Despite Doe's refusal, forensic analysts discovered the password to decrypt the Mac Pro Computer, but could not decrypt the external hard drives. Forensic examination of the Mac Pro revealed an image of a pubescent girl in a sexually provocative position and logs showing that the Mac Pro had been used to visit sites with titles common in child exploitation, such as "toddler_cp," "lolicam," "tor-childporn," and "pthc."² (App. 39.) The Forensic examination also disclosed that Doe had downloaded thousands of files known by their "hash" values to be child pornography.³ The files, however, were not on the Mac Pro, but instead had been stored on the encrypted external hard drives. Accordingly, the files themselves could not be accessed.

As part of their investigation, the Delaware County law enforcement officers also interviewed Doe's sister, who had lived with Doe during 2015. She related that Doe had shown her hundreds of images of child pornography on the encrypted external hard drives. She told the investigators that the external hard drives included "videos of children who were nude and engaged in sex acts with other children." (App. 40.) Doe provided the password to access the iPhone 6 Plus, but did not grant access to an application on the phone which contained additional encrypted information. Forensic analysts concluded that the phone's encrypted database contained approximately 2,015 image and video files.

On August 3, 2015, upon application of the Government, a Magistrate Judge issued an order pursuant to the All Writs Act requiring Doe to produce his iPhone 6 Plus, his Mac Pro computer, and his two attached external hard drives in a fully unencrypted state (the "Decryption Order"). Doe did not appeal the Decryption Order. Instead, he filed with the Magistrate Judge a motion to quash the Government's application to compel decryption, arguing that his act of decrypting the devices would violate his Fifth Amendment privilege against self-incrimination.

On August 27, 2015, the Magistrate Judge denied Doe's Motion to Quash and directed Doe to fully comply with the Decryption Order (the "Quashal Denial"). The Magistrate Judge acknowledged Doe's Fifth Amendment objection but held that, because the Government possessed Doe's devices and knew that their contents included child pornography, the act of decrypting the devices would not be testimonial for purposes of the Fifth Amendment privilege against self-incrimination. The Quashal Denial stated that a failure to file timely objections could result in the waiver of appellate rights. Doe did not file any objections to the Quashal Denial and did not seek review by way of appeal, writ of mandamus, or otherwise.

Approximately one week after the Quashal Denial, Doe and his counsel appeared at the Delaware County Police Department for the forensic examination of his devices. Doe produced the Apple iPhone 6 Plus, including the files on the secret application, in a fully unencrypted state by entering three separate passwords on the device. The phone contained adult pornography, a video of Doe's four-year-old niece in which she was wearing only her underwear, and approximately twenty photographs which focused on the genitals of Doe's six-year-old niece. Doe, however, stated that he could not remember the passwords necessary to decrypt the hard drives and entered several incorrect passwords during the forensic examination. The Government remains unable to view the decrypted content of the hard drives without his assistance.

Following the forensic examination, the Magistrate Judge granted the Government's Motion for Order to Show Cause Why Doe Should Not Be Held in Contempt, finding that Doe willfully disobeyed and resisted the Decryption Order. Based on the evidence presented at the hearing, the Magistrate Judge found that Doe remembered the passwords needed to decrypt the hard drives but chose not to reveal them because of the devices' contents. The Magistrate Judge ordered Doe to appear before the District Court to show cause as to why he should not be held in civil contempt.

On September 30, 2015, after a hearing, the District Court granted the Government's motion to hold Doe in civil contempt. On October 5, 2015, the District Court issued a "Supplemental Order to articulate the reasons for its September 30th Order." (App. at 12.) The District Court noted that the Government's prima facie case of contempt was largely, if not entirely, uncontested. While the Government presented several witnesses to support its motion, Doe neither testified nor called witnesses. He offered no physical or documentary evidence into the record and provided no explanation for his failure to comply with the Decryption Order. The District Court remanded Doe to the custody of the United States Marshals to be incarcerated until he fully complies with the Decryption Order. This timely appeal followed.

II.

We have appellate jurisdiction under 28 U.S.C. § 1291. We ordinarily exercise plenary review over the District Court's authority to issue an order pursuant to the All Writs Act, Grider v. Keystone Health Plan Cent., Inc ., 500 F.3d 322, 327 (3d Cir. 2007), and "review a district court's decision on a motion for contempt for abuse of discretion." Marshak v. Treadwell , 595 F.3d 478, 485 (3d Cir. 2009). However, when the party seeking review has failed to preserve the issue in the trial court, we review only for plain error. See Brightwell v. Lehman, 637 F.3d 187, 193 (3d Cir. 2011) ; Nara v. Frank , 488 F.3d 187, 194 (3d Cir. 2007). We nonetheless exercise plenary review over challenges concerning subject matter jurisdiction. United States v. Merlino , 785 F.3d 79, 82 (3d Cir. 2015).

III.

Doe raises two primary arguments as to why he should not be held in contempt. First, he asserts that the District Court lacked subject matter jurisdiction to issue the Decryption Order under the All Writs Act. Thus, he argues that he is not in contempt of any valid order and the judgment of contempt must be vacated. Second, Doe contends that the Decryption Order violates his Fifth Amendment privilege against self-incrimination.

A.

Doe's first challenge concerns the All Writs Act, which permits federal courts to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a). The All Writs Act does not itself confer any subject matter jurisdiction, but rather only allows a federal court to issue writs "in aid of" its existing jurisdiction. Clinton v. Goldsmith , 526 U.S. 529, 534, 119 S.Ct. 1538, 143 L.Ed.2d 720 (1999) ; Sy n genta Crop Prot., Inc. v. Henson , 537 U.S. 28, 31, 123 S.Ct. 366, 154 L.Ed.2d 368 (2002) ; see also In re Arunachal a m , 812 F.3d 290, 292 (3d Cir. 2016) (per curiam). Therefore, a court has subject matter jurisdiction over an application for an All Writs Act order only when it has subject matter jurisdiction over the underlying order that the All Writs Act order is intended to effectuate. Additionally, a federal court may only issue an All Writs Act order "as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained." United States v. N.Y. Tel. Co ., 434 U.S. 159, 172, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977).

Doe contends that the Magistrate Judge did not have subject matter jurisdiction to issue the Decryption Order because the Government should have...