The 11th Circuit just decided In re Grand Jury Subpoena Duces Tecum March 25, 2011, USA v. John Doe.
Doe was ordered to decrypt his hard drive, and given limited immunity (use immunity) regarding the act of production of the unencrypted contents. He refused, claiming that the immunity was insufficient, and also that he was not in fact able to decrypt the hard drives.
We turn now to the merits of Doe’s appeal. In compelling Doe to produce the unencrypted contents of the hard drives and then in holding him in contempt for failing to do so, the district court concluded that the Government’s use of the unencrypted contents in a prosecution against Doe would not constitute the derivative use of compelled testimony protected by the Fifth Amendment privilege against self-incrimination. This is so, the court thought,because Doe’s decryption and production of the hard drives would not constitute “testimony.” And although that was the Government’s view as well, the Government nonetheless requested act-of-production immunity.13 The district court granted this request.
For the reasons that follow, we hold that Doe’s decryption and production of the hard drives’ contents would trigger Fifth Amendment protection because it would be testimonial, and that such protection would extend to the Government’s use of the drives’ contents. The district court therefore erred in two respects. First, it erred in concluding that Doe’s act of decryption and production would not constitute testimony. Second, in granting Doe immunity, it erred in limiting his 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.
It’s a well-argued opinion and could be influential.
My office neighbor Caroline Bradley and I are having a mild disagreement over her incredulity that greek doctors are “foreign government officials” for Foreign Corrupt Practices Act purposes.
My take is that if they are state employees, and if they have authority to buy stuff, and if the bribes are to get them to buy the stuff in particular ways, then why not?
Please direct any comments to the original post.
Inevitably, here comes the test case:
A U.S. federal judge has ordered a defendent to decrypt her laptop.
–Schneier on Security: Federal Judge Orders Defendant to Decrypt Laptop
With all our recent hires in the criminal law area, the law school is turning into something of a crim law powerhouse. So it’s appropriate that this year’s Law Review Symposium will be on the death penalty and life without parole. The Symposium will be held on the afternoon of Friday, February 17 and the morning of Saturday, February 18. Topics include:
- whether the death penalty is near its end in the United States;
- the debate over new lethal injection protocols;
- the debate about life without parole as an alternative to the death penalty, and
- the role of social science in examining the death penalty.
The keynote speaker will be Jordan Steiker of the University of Texas Law School.
Panelists will include Deborah Denno of Fordham, Robert Blecker of New York Law School, Mona Lynch of the University of California at Irvine, Corinna Lain of the University of Richmond, Adam Kolber of Brooklyn Law School, Douglas Berman of Ohio State, Cynthia Brown of the University of Central Florida, Ashley Nellis of The Sentencing Project, and University of Miami law professors Susan Bandes, Mary Anne Franks, Tamara Lave, and Sarah Mourer.
This is a good list of speakers — should be a great event for people interested in the topic.
For more information, or to register in advance, you can contact Farah Barquero or call (305) 284-2464.
A man accused of drug trafficking showed up for court Friday in Fort Lauderdale sporting a jacket that bore a cartoon-style recipe for cooking crack cocaine.
The man’s white jacket looked like a how-to guide for making crack cocaine, with a series of little pictures of a white substance with a spoon, a carton of baking soda and a little pot over a fire. The end product was a "rock," slang for the drug.
via MiamiHerald.com, Man wears ‘crack jacket’ to court.
My question is whether this sort of thing is common only in Broweird, as we so fondly call it, or is this more common? I sort of fear it might be national.
Could it really be true that 99% of statistics are made up? Maybe so.