United States v. Apple Macpro Computer, 032017 FED3, 15-3537

Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
Attorney:Keith M. Donoghue [ARGUED] Brett G. Sweitzer Leigh M. Skipper Federal Community Defender Office for the Eastern District of Pennsylvania Counsel for Defendant-Appellant Christopher C. Walsh Adam Schwartz Mark Rumold [ARGUED] Andrew Crocker Electronic Frontier Foundation Counsel for Amicus Curiae ...
Judge Panel:Before: JORDAN, VANASKIE, and NYGAARD, Circuit Judges.
Opinion Judge:VANASKIE, Circuit Judge.
Party Name: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 *(Pursuantto Rule 12(a), Fed. R. App. P.)
Case Date:March 20, 2017
Docket Nº:15-3537
 
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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

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

No. 15-3537

United States Court of Appeals, Third Circuit

March 20, 2017

          Argued September 7, 2016

         On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C.No. 15-mj-00850-001) District Judge: Hon. L. Felipe Restrepo

          Keith M. Donoghue [ARGUED] Brett G. Sweitzer Leigh M. Skipper Federal Community Defender Office for the Eastern District of Pennsylvania Counsel for Defendant-Appellant

          Christopher C. Walsh Adam Schwartz Mark Rumold [ARGUED] Andrew Crocker Electronic Frontier Foundation Counsel for Amicus Curiae Leslie Caldwell Nathan Judish [ARGUED] Bernadette McKeon Michelle Rotella Office of the United States Attorney 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 "toddlercp, " "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...

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