Commonwealth v. Davis, J., Aplt.

[J-42-2019]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 56 MAP 2018
:
Appellee : Appeal from the Order of the Superior
: Court dated November 30, 2017 at
: No. 1243 MDA 2016, affirming the
v. : Order of the Court of Common Pleas
: of Luzerne County, Criminal Division,
: dated June 30, 2016 Nos. CP-40-CR-
JOSEPH J. DAVIS, : 291-2016 and CP-40-MD-11-2016
:
Appellant : ARGUED: May 14, 2019
:
OPINION
JUSTICE TODD DECIDED: November 20, 2019
In this appeal by allowance, we consider an issue of first impression: Whether a
defendant may be compelled to disclose a password to allow the Commonwealth access
to the defendant’s lawfully-seized, but encrypted, computer. For the reasons that follow,
we find that such compulsion is violative of the Fifth Amendment to the United States
Constitution’s prohibition against self-incrimination. Thus, we reverse the order of the
Superior Court.
On July 14, 2014, agents of the Office of Attorney General (“OAG”), as part of their
investigation of the electronic dissemination of child pornography, discovered that a
computer at an identified Internet Protocol (IP) address1 registered with Comcast Cable
1IP addresses identify computers on the Internet, enabling data transmitted from other
computers to reach them. National Cable & Telecomm. Ass’n v. Brand X Internet
Services, 545 U.S. 967, 987 n.1 (2005).
Communications (“Comcast”), repeatedly utilized a peer-to-peer file-sharing network,
eMule, to share child pornography. N.T. Hearing, 1/14/16, at 6-8. Specifically, agents
used a computer with software designed to make a one-to-one connection with the
computer at the aforementioned IP address and downloaded a file, later confirmed to
contain child pornography, which was saved to the OAG computer. Id. at 5-6. Based
upon its transference and review of the file, the OAG obtained a court order to compel
Comcast to provide subscriber information associated with the IP address. The
information provided by Comcast disclosed the subscriber as Appellant Joseph Davis, as
well as his address. Id. at 8-9.
On September 9, 2014, the OAG applied for, received, and executed a search
warrant at Appellant’s apartment. OAG Special Agent Justin Leri informed Appellant that
he was not under arrest, but that the search involved an investigation of child
pornography. Id. at 11. Appellant was then read his Miranda warnings and waived his
Miranda rights. Id. Appellant acknowledged that he was the sole user of a Dell
computer.2 He admitted to having prior pornography convictions, but denied the
computer contained any illegal pornographic images. Appellant then declined to answer
additional questions without a lawyer. Id. Later examination of the computer revealed
that the hard drive had been “wiped,” removing data entirely or rendering it unreadable.
Id. at 43-44.
On October 4, 2015, OAG Agent Daniel Block identified a different child
pornography video that was shared with a different IP address utilizing the eMule server.
An administrative subpoena to Comcast regarding this IP address again produced
Appellant’s name and contact information. A direct connection was made from OAG
2 The Dell computer seized in this search is not the subject of the Commonwealth’s motion
to compel a password at issue in this matter.
[J-42-2019] - 2
computers to this IP address, and one electronic file containing child pornography was
transferred to the OAG computer. Id. at 19.
On October 20, 2015, the OAG executed another search warrant at Appellant’s
apartment based upon this video. At Appellant’s apartment, the agents discovered a
single computer, an HP Envy 700 desktop. After being Mirandized, Appellant informed
the agents that he lived alone, that he was the sole user of the computer, and that he
used hardwired Internet services which are password protected, and, thus, not accessible
by the public, such as through Wifi. Id. at 26. Appellant offered that only he knew the
password to his computer. Id. Appellant also informed the agents, inter alia, that he
watched pornography on the computer which he believed was legal; that he had
previously been arrested for child pornography; and that child pornography was legal in
other countries so he did not understand why it was illegal in the United States. Id. at 27-
28. The agents arrested Appellant for the eMule distributions and seized his computer.
Agent Block asked Appellant for the password to this computer and Appellant refused.
Id. at 28. Subsequently, when in transit to his arraignment, Appellant spoke openly about
watching various pornographic movies, indicating that he particularly liked watching 10,
11, 12, and 13-year olds. Id. at 30. Agent Block again requested that Appellant provide
him with the password to the computer. Appellant responded: “It’s 64 characters and why
would I give that to you? We both know what’s on there. It’s only going to hurt me. No
f*cking way I’m going to give it to you.” Id.
Later, in a holding cell, Agent Leri conversed with Appellant who, inter alia, offered
that he believes the “government continuously spies on individuals,” and questioned “why
it’s illegal to . . . view movies in the privacy of [his] own home.” Id. at 35. In a later
conversation, Agent Leri asked Appellant if he could remember the password. Appellant
replied that he could not remember it, and that, even if he could, it would be like “putting
[J-42-2019] - 3
a gun to his head and pulling the trigger.” Id. at 35-36. In a subsequent visit, when asked
again about the password, Appellant offered that “he would die in jail before he could ever
remember the password.” Id. at 37.
A supervisory agent in computer forensics, Special Agent Braden Cook, testified
that a portion of Appellant’s HP 700 Envy computer’s hard drive was encrypted with a
program called TrueCrypt Version 7.1. Id. at 42. The entire hard drive of the computer
was encrypted and “there was no data that could be read without opening the TrueCrypt
volume.” Id. at 46. Agent Cook could only confirm that there was “Windows on the
computer and the TrueCrypt,” and he had no knowledge of any specific files other than
the operating system files. Id. at 50-51.
Appellant was charged with two counts of disseminating child pornography in
violation of 18 Pa.C.S. § 6312(c), and two counts of criminal use of a communication
facility in violation of 18 Pa.C.S. § 7512(a), which arose from the July 2014 and October
2015 detections.
On December 17, 2015, the Commonwealth filed with the Luzerne County Court
of Common Pleas a pre-trial motion to compel Appellant to divulge the password to his
HP 700 computer. Appellant responded by invoking his right against self-incrimination.
On January 14, 2016, the trial court conducted an evidentiary hearing at which several
OAG agents testified, as set forth above, about the investigation supporting the seizure
of the computer.
The trial court focused on the question of whether the encryption was testimonial
in nature, and, thus, protected by the Fifth Amendment. The trial court opined that “[t]he
touchstone of whether an act of production is testimonial is whether the government
compels the individual to use ‘the contents of his own mind’ to explicitly or implicitly
communicate some statement of fact.” Trial Court Opinion, 6/30/2016, at 8-9 (citation
[J-42-2019] - 4
omitted). As part of its analysis, the trial court looked to the “foregone conclusion”
exception to the Fifth Amendment privilege against self-incrimination as articulated by the
United States Supreme Court in Fisher v. United States, 425 U.S. 391, 409 (1976). The
court noted the rationale underlying this doctrine is that an act of production does not
involve testimonial communication if the facts conveyed are already known to the
government, such that the individual “‘adds little or nothing to the sum total of the
government’s information.’” Trial Court Opinion, 6/30/2016, at 9 (quoting Fisher, 425 U.S.
at 409). The trial court offered that for this exception to apply, the government must
establish its knowledge of (1) the existence of the evidence demanded; (2) the possession
or control of the evidence by the defendant; and (3) the authenticity of the evidence. Id.
at 9.
Applying the foregone conclusion exception, the trial court found that, in the case
at bar, the computer located in Appellant’s residence had hard-wired Internet access only;
Appellant admitted it was TrueCrypt encrypted; that he was the only user, and he was the
only one who knew the password; Appellant indicated to the agents that “we both know
what is on there,” and stated that he would “die in prison before giving up the password;”
and that the Commonwealth knew with a reasonable degree of certainty that child
pornography was on the computer. Id. at 11. Based upon these facts, the trial court
determined that the information the Commonwealth sought from Appellant was a
foregone conclusion, in that the facts to be conveyed by Appellant’s act of production of
his password already were known to the government. As, according to the trial court,
Appellant’s revealing his password would not provide the Commonwealth with any new
evidence, and would simply be an act that permitted the Commonwealth to retrieve what
was already known to them, the foregone conclusion exception was satisfied. Thus, on
June 30, 2016, the trial court granted the Commonwealth’s motion and directed Appellant
[J-42-2019] - 5
to supply the Commonwealth with any passwords used to access the computer within 30
days. Appellant filed an interlocutory appeal.
A three-judge panel of the Superior Court affirmed. Commonwealth v. Davis, 176
A.3d 869 (Pa. Super. 2017).3 Like the trial court, the Superior Court found that, to qualify
for the Fifth Amendment privilege, a communication must be testimonial. The Superior
Court observed that the question of whether compelling an individual to provide a digital
password was testimonial in nature was an issue of first impression for the court. Building
upon the trial court’s analysis, the Superior Court explained that the Fifth Amendment
right against self-incrimination is not violated when the information communicated to the
government by way of a compelled act of production is a foregone conclusion. The court
reasoned that the foregone conclusion exception provides that an act of production does
not involve testimonial communication where the facts conveyed already are known to
the government and set forth the applicable three-prong test. Id. at 874-75 (citing Fisher,
425 U.S. at 410-13).
Applying the foregone conclusion exception, the Superior Court, contrary to the
trial court, focused on the password itself, and reasoned that the Commonwealth
established the computer could not be opened without the password, that the computer
belonged to Appellant and the password was in his possession, and that this information
was “self-authenticating” ― i.e., if the computer was accessible upon entry of the
password, the password was authentic. Id. at 876. Further, the court noted that multiple
jurisdictions have held that the government’s knowledge of the encrypted documents or
3 The Superior Court initially considered whether it had jurisdiction to entertain the trial
court’s interlocutory order on appeal. In sum, the court determined that the order satisfied
each of the requirements of the collateral order doctrine as set forth in Pa.R.A.P. 313(b).
The parties do not question this determination on appeal. While the matter is jurisdictional
in nature, and, thus, non-waivable and subject to sua sponte consideration by this Court,
Commonwealth v. Shearer, 882 A.2d 462, 465 n.4 (Pa. 2005), we do not disagree with
the Superior Court’s analysis.
[J-42-2019] - 6
evidence that it sought to compel did not need to be exact, and determined that, based
on the agents’ forensic investigation, as well as Appellant’s own statements to the agents
while in custody, there was a high probability that child pornography existed on his
computer. Thus, the Superior Court concluded that the trial court did not err in holding
that the act of providing the password in question was not testimonial in nature and that
Appellant’s Fifth Amendment right against self-incrimination would not be violated by
compelling him to disclose the password.
Our Court granted allocatur to consider the following issue, as framed by Appellant:
May [Appellant] be compelled to disclose orally the
memorized password to a computer over his invocation of
privilege under the Fifth Amendment to the Constitution of the
United States, and Article I, [S]ection 9 of the Pennsylvania
Constitution?
Commonwealth v. Davis, 195 A.3d 557 (Pa. 2018) (order). The parameters of our review
of an issue involving a constitutional right is well settled. Our standard of review is de
novo, and our scope of review is plenary. Commonwealth v. Baldwin, 58 A.3d 754, 762
(Pa. 2012).
Appellant argues the Fifth Amendment prohibits government compulsion to
disclose a computer password against one’s will, reasoning that requiring an individual to
recall and disclose the memorized password is quintessentially testimonial, i.e., revealing
the contents of one’s own mind. Indeed, according to Appellant, the privilege is not just
about information, but is “about a core of individual autonomy into which the state may
not encroach.” Appellant’s Brief at 16. Appellant maintains that, as his password exists
in his mind, he cannot be compelled to remember the password or reveal it, as a person’s
thoughts and knowledge are at the core of the Fifth Amendment.
According to Appellant, the Fifth Amendment protects against not only compelled
written and oral testimony, but nonverbal acts as well. Appellant continues that, while not
[J-42-2019] - 7
at issue in this appeal, even if the Commonwealth had obtained an order compelling
Appellant to physically enter his password into his computer ― rather than forcing him to
speak or write down his password ― this would still constitute a form of written testimony
and, in any event, such a demand for action still requires using the contents of his mind
to enter his password. Appellant contrasts such compulsion with one requiring merely
physical acts, such as being required to wear a particular shirt, provide a blood sample,
or provide a handwriting exemplar, which are not testimonial in nature, as they do not rely
on the contents of one’s mind. See Holt v. United States, 218 U.S. 245, 252-53 (1910);
Schmerber v. California, 384 U.S. 757, 761 (1966); Gilbert v. California, 388 U.S. 263,
266-67 (1967). Appellant offers that providing a password that will unlock data on a
computer is no different from providing a combination that unlocks a briefcase or a safe,
which has been held to be testimonial in nature.
Appellant further asserts that the Supreme Court’s “‘foregone conclusion’
rationale,” as set forth in Fisher, does not apply to computer passwords. Appellant’s Brief
at 24. Appellant suggests that the holding in Fisher was limited to its facts and merely
involved the question of whether the disclosure of certain tax documents known to be in
the possession of the defendants’ attorneys, as agents of the defendants, could be
compelled by the government. In distinguishing Fisher, Appellant not only emphasizes
that in that case the request did not compel oral testimony, or require restating, repeating,
or affirming the truth of the contents of the documents, but explains that, because
accountants prepared the papers which were ultimately possessed by defendants’
attorneys, and could independently authenticate them, the Government was not relying
upon the “truth-telling” of the defendants. Fisher, 425 U.S. at 411.
Appellant submits that, regardless of the scope of the foregone conclusion
rationale, it is limited to the act of producing documents and that, as discussed below, the
[J-42-2019] - 8
United States Supreme Court has applied the foregone conclusion exception only once
since Fisher, rejecting its usage in the context of the compelled production of business
records. United States v. Hubbell, 530 U.S. 27 (2000) (dismissing government’s reliance
on foregone conclusion exception, finding that compulsion to produce papers that would
require defendant to make use of his own mind to identify hundreds of documents
responsive to the request did not fall within the exception).
Appellant asserts that, even if the foregone conclusion rationale could apply to the
compelled decryption of a computer, it cannot be satisfied in this matter. Specifically, as
to the password itself, Appellant contends that it is not a foregone conclusion that he even
knows the password at this time. Likewise, if the rationale goes to the presence of
contraband on Appellant’s computer, which Appellant maintains that it does, here, the
OAG agents noted that they could not tell what might be on the confiscated computer,
and, as the computer was not connected to the Internet when it was seized, there is no
proof that it was the one used to share pornography on eMule.4 Finally, Appellant adds
that the relatively few states that have considered the decryption password issue have
reached divergent conclusions, and stresses that the national trend is toward greater
protections.
The Commonwealth explains that the Fifth Amendment, by its terms, provides that
no person shall be compelled in any criminal case to be a witness against himself; thus,
4 Appellant also argues an independent basis for protection against disclosure of the
password under Article I, Section 9 of the Pennsylvania Constitution. Appellant engages
in a detailed analysis, offering that the text of the Pennsylvania charter as well as the
history of the provision suggests broader protections thereunder. The Commonwealth
strongly asserts throughout its brief that Appellant has waived his state constitutional law
claim, and maintains that, in any event, such claim has no merit, stressing the numerous
decisions in which our Court has indicated the rights under the sister sections are
coterminous. As we resolve this matter on federal Constitutional grounds, we need not
address the Commonwealth’s waiver contention or Appellant’s underlying assertion of the
recognition of greater rights under the Pennsylvania Constitution.
[J-42-2019] - 9
according to the Commonwealth, this Amendment covers only communications that are
testimonial, and the compulsion to produce physical evidence is not protected. The
Commonwealth relies almost exclusively on what it describes as the foregone conclusion
“doctrine,” as articulated in Fisher and other decisional law. The Commonwealth surveys
various decisions and submits that the majority of cases find it logical and sound to extend
the foregone conclusion exception to providing the password to an encrypted device.
Here, according to the Commonwealth, the compelled act is the surrendering of the
password, and the “testimony” inherent in Appellant’s production of the password ― the
existence, location, and authenticity, of the password ― is a foregone conclusion. In
short, the Commonwealth contends that revealing the password will add nothing
communicative to the government’s information as it does not disclose information about
the computer or its contents. Thus, the Commonwealth asserts it has met its burden in
this regard.5
Our analysis begins with the United States Constitution. The Self-Incrimination
Clause of the Fifth Amendment provides “[n]o person . . . shall be compelled in any
criminal case to be a witness against himself.” U.S. Const. amend. V. This privilege not
only applies to a defendant in a criminal trial, but “in any other proceeding, civil or criminal,
formal or informal, where the answers might incriminate [the speaker] in future criminal
proceedings.” Minnesota v. Murphy, 465 U.S. 420, 426 (1984) (citation omitted).
5 Amicus for Appellant, the Electronic Frontier Foundation, stresses that compulsion to
disclose a computer password subjects an individual to a “cruel trilemma” ― to choose
between providing the allegedly incriminating information; lying about the purported
inability to do so; or refusing to cooperate and be held in contempt. According to Amicus,
the privilege was designed to prevent this trilemma. In a joint amicus brief in support of
the Commonwealth, various states provide an interesting history of modern encryption,
press the troubling consequences of Appellant’s position ― including the altering of the
balance of power, rendering law enforcement incapable of accessing large amounts of
relevant evidence ― and warn that adopting Appellant’s position could result in less
privacy, not more, in the form of draconian anti-privacy legislation.
[J-42-2019] - 10
“Although the text does not delineate the ways in which a person might be made a
‘witness against himself,’ we have long held that the privilege does not protect a suspect
from being compelled by the State to produce ‘real or physical evidence.’ Rather, the
privilege ‘protects an accused only from being compelled to testify against himself, or
otherwise provide the State with evidence of a testimonial or communicative nature.’”
Pennsylvania v. Muniz, 496 U.S. 582, 588-89 (1990) (citations omitted). As offered by
Justice Oliver Wendell Holmes, “the prohibition of compelling a man in criminal court to
be witness against himself is a prohibition of the use of physical or moral compulsion to
extort communications from him, not an exclusion of his body as evidence when it may
be material.” Holt, 218 U.S. at 252-53. Indeed, “in order to be testimonial, an accused’s
communication must itself, explicitly or implicitly, relate a factual assertion or disclose
information. Only then is a person compelled to be a ‘witness’ against himself.” Doe v.
United States, 487 U.S. 201, 210 (1988) (“Doe II”) (footnote omitted).
However, in the realm of the non-physical disclosure of information, the privilege
is broad, as “compelled testimony that communicates information that may ‘lead to
incriminating evidence’ is privileged even if the information itself is not inculpatory.” Id.487 U.S. at 208 n.6. Thus, it is a “protection against the prosecutor’s use of incriminating
information derived directly or indirectly from the compelled testimony.” Hubbell, 530 U.S.
at 38.
The primary policy undergirding the Fifth Amendment privilege against self-
incrimination is our country's “fierce ‘unwillingness to subject those suspected of crime to
the cruel trilemma of self-accusation, perjury or contempt’ that defined the operation of
the Star Chamber, wherein suspects were forced to choose between revealing
incriminating private thoughts and forsaking their oath by committing perjury.” Muniz, 496
U.S. at 596 (quoting Doe II, 487 U.S. at 212). This being the case, “the definition of
[J-42-2019] - 11
‘testimonial’ evidence articulated in Doe must encompass all responses to questions that,
if asked of a sworn suspect during a criminal trial, could place the suspect in the ‘cruel
trilemma.’” Id. at 597. As the Supreme Court reasoned, “[t]his conclusion is consistent
with our recognition in Doe that ‘[t]he vast majority of verbal statements thus will be
testimonial’ because ‘[t]here are very few instances in which a verbal statement, either
oral or written, will not convey information or assert facts.’” Id. Thus, “[w]henever a
suspect is asked for a response requiring him to communicate an express or implied
assertion of fact or belief, the suspect confronts the ‘trilemma’ of truth, falsity, or silence,
and hence the response (whether based on truth or falsity) contains a testimonial
component.” Id. (footnote omitted).
To invoke the Fifth Amendment privilege against the forced provision of
information, a defendant must show (1) the evidence is self-incriminating; (2) the evidence
is compelled; and (3) the evidence is testimonial in nature. Hubbell, 530 U.S. at 34. Thus,
the government may not force someone to provide an incriminating communication that
is “testimonial” in nature. It is only this last requirement ― whether the evidence sought
to be compelled is testimonial ― that is at issue in this appeal.
The United States Supreme Court has not rendered a decision directly addressing
whether compelling a person to disclose a computer password is testimonial. In a series
of foundational, but somewhat complex, cases, however, the high Court has discussed
whether the act of production of documents may be testimonial for purposes of the Fifth
Amendment.
In Fisher, the high Court examined the question of what acts of production were
testimonial in nature. Fisher involved consolidated cases in which the Internal Revenue
Service (“IRS”) sought to obtain voluntarily-prepared documents the defendant taxpayers
had given to their attorneys. The IRS issued summonses on the defendant taxpayers’
[J-42-2019] - 12
attorneys to produce the documents which included accountants’ work papers, copies of
the defendant taxpayers’ returns, and copies of other reports and correspondence. The
attorneys responded that producing the documents would violate their clients' rights
against self-incrimination, after which the IRS brought an enforcement action.
Ultimately, the Supreme Court, after rejecting the attorneys’ argument that the Fifth
Amendment protected them from being compelled to produce the documents, determined
that the Fifth Amendment privilege was applicable where defendant taxpayers were
required to produce incriminating evidence, and that the act of producing even
unprivileged evidence could have communicative aspects rendering it testimonial and
entitled to Fifth Amendment protection. Fisher, 425 U.S. at 409-10. Under the facts in
Fisher, the Court found that the government was not relying on the “truth-telling” of the
defendant taxpayers to establish the existence of the documents, their access to them,
or their authentication of them, as they had been produced by accountants, and not the
defendant taxpayers themselves. Id. at 411. Thus, the Court concluded that the act of
producing the subpoenaed documents did not involve self-incriminating testimony.
This analysis served as the basis of the foregone conclusion exception to the Fifth
Amendment, discussed below. The Court offered that, because the existence, location,
and authenticity of the documents sought was known to the government, the Fifth
Amendment privilege was rendered inapplicable. The Court explained that “[t]he
existence and location of the papers are a foregone conclusion and the taxpayer adds
little or nothing to the sum total of the Government’s information by conceding that he in
fact has the papers.” Id. Thus, the Court reasoned that the defendant taxpayers’
production of the documents was non-testimonial because the government knew of the
existence of the documents, that the defendant taxpayers possessed the documents, and
that the government could show their authenticity ― not through the use of the defendant
[J-42-2019] - 13
taxpayers’ minds, but through the testimony of others. Thus, the Fifth Amendment
privilege did not apply to the third-party production of documents requested. Id. at 414.
Almost a decade later, in United States v. Doe, 465 U.S. 605 (1984) (“Doe I”), the
Court considered a Fifth Amendment challenge to a subpoena that did not seek specific,
known files, but broad categories of general business records of a sole proprietorship.
The Court found that, while the contents of the documents were not privileged, the act of
producing the business documents could have testimonial aspects and an incriminating
effect. The Court opined that the enforcement of the subpoena would compel the
defendant to admit that the records existed, that they were in his possession, and that
they were authentic, which was sufficient to establish a valid claim of privilege against
self-incrimination. While concluding that, by producing the documents, the defendant
would relieve the government of the need for authentication, the Court mentioned
(although did not apply) the foregone conclusion analysis: “This is not to say that the
Government was foreclosed from rebutting respondent’s claim by producing evidence
that possession, existence, and authentication were a ‘foregone conclusion.’ . . . In this
case, however, the Government failed to make such a showing.” Id. at 614 n.13 (citation
omitted).
In a subsequent, unrelated, decision in Doe II, the high Court considered the
legality of an order compelling the target of a grand jury investigation to authorize foreign
banks to disclose records of his accounts. 487 U.S. at 202. The defendant contended
that compelling him to sign the bank consent form would provide the government with
incriminating records that would otherwise be unavailable, as the court had no power to
order foreign banks to produce records. Id. at 204. In rejecting this contention, the high
Court indicated that “an accused’s communication must itself, explicitly or implicitly, relate
a factual assertion or disclose information.” Id. at 210. The Court reasoned that the
[J-42-2019] - 14
written authorization did not have testimonial significance, as it did not communicate any
factual assertion, implicit or explicit, or convey any information to the government.
Importantly, for purposes of the issue before us, in response to a dissent by Justice
John Paul Stevens, wherein he would have found the Fifth Amendment gave the
defendant the right to refuse to sign the consent authorizing access to his bank accounts
on the basis that he was compelled to use his mind as a witness against himself, the
majority first agreed with the dissent by acknowledging that “[t]he expression of the
contents of an individual’s mind” is testimonial communication for purposes of the Fifth
Amendment. Id. at 210 n.9. Thus, the Court was unanimous in its holding on this issue.
The majority continued, however, that “[w]e simply disagree with the dissent’s conclusion
that the execution of the consent directive at issue here forced petitioner to express the
contents of his mind. In our view, such compulsion is more like ‘be[ing] forced to
surrender a key to a strongbox containing incriminating documents’ than it is like ‘be[ing]
compelled to reveal the combination to [petitioner’s] wall safe.’” Id. (quoting Stevens, J.
dissenting, 487 U.S. at 219) (emphasis added). Thus, the Court emphasized a clear
physical/mental distinction in the context of a foregone conclusion analysis.
Another decade later, the Court in Hubbell again spoke to testimonial evidence in
the business record context. In that case, Webster Hubbell, as part of the “Whitewater”
investigation by Independent Counsel Kenneth Starr during the presidency of Bill Clinton,
had pleaded guilty to charges of mail fraud and tax evasion arising out of his billing
practices. In the plea agreement, Hubbell promised to provide the Independent Counsel
with “full, complete, accurate, and truthful information” about matters relating to the
Whitewater investigation. Hubbell, 530 U.S. at 30. Later, while Hubbell was in prison, a
grand jury investigating the activities of the Whitewater Development Corporation, issued
a subpoena demanding from Hubbell the production of eleven categories of documents.
[J-42-2019] - 15
Id. at 31. Hubbell invoked his Fifth Amendment privilege. The Independent Counsel then
obtained an order from the federal district court directing Hubbell to comply with the
subpoena and granting him immunity against the government’s use and derivative use of
the compelled testimony. Hubbell then delivered 13,120 pages of the specified
documents, after which the grand jury returned an indictment against Hubbell for various
wire fraud, mail fraud, and tax crimes. In response, Hubbell asserted his right against
self-incrimination and a violation of the immunity previously granted. The district court
dismissed this new indictment, but the United States Court of Appeals for the District of
Columbia Circuit reversed, and the Supreme Court granted certiorari.
Citing Fisher, the Supreme Court reiterated that “a person may be required to
produce specific documents even though they contain incriminating assertions of fact or
belief because the creation of those documents was not ‘compelled’ within the meaning
of the privilege.” Id. at 35-36. Accordingly, the simple fact that the documents contained
incriminating evidence did not mean that Hubbell could avoid complying with the
subpoena.
Importantly, however, the Court reaffirmed that the very act of producing
documents in response to a subpoena may have a compelled testimonial aspect in and
of itself: “The ‘compelled testimony’ that is relevant . . . is not to be found in the contents
of the documents produced in response to the subpoena. It is, rather, the testimony
inherent in the act of producing those documents.” Id. at 40. (emphasis added.) Noting
that in Fisher, the government already knew that the documents were in the attorneys’
possession and could independently confirm their existence and authenticity through the
accountants, the Hubbell Court nevertheless found that the government had not shown it
had prior knowledge of the existence or whereabouts of the documents produced by
Hubbell. Moreover, in rejecting the government’s assertion that its possession of the
[J-42-2019] - 16
documents was the result of the physical act of producing the documents, the Court
explained that it was Hubbell’s responses that had provided the government with this
information, and that it was “unquestionably necessary for [Hubbell] to make extensive
use of ‘the contents of his own mind’ in identifying the hundreds of documents responsive
to the requests in the subpoena.” Id. at 43. Indeed, in discussing the government’s
subpoena, which had required Hubbell to provide numerous responses to very broad
requests, the Court, harkening back to the Doe II distinction, made clear that “[t]he
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.” Id. at 43 (citation omitted).
The Court then considered whether the act of producing the records was
sufficiently testimonial because the existence and possession of such records was a
foregone conclusion. The Court held that “[w]hatever the scope of this ‘foregone
conclusion’ rationale,” it did not apply to overcome the testimonial aspects of Hubbell’s
production of documents because the government did not have prior knowledge of the
existence or location of the documents. Id. at 44-45. Thus, the Court concluded that the
Fifth Amendment privilege applied, and that Hubbell’s act of production of the documents
had testimonial aspects, at least regarding the existence and location of the documents,
which was not overcome by being a foregone conclusion. Id. at 45.
Finally, the Supreme Court’s decision in Muniz informs our analysis. Muniz, after
failing field sobriety tests, was arrested for driving while intoxicated, and asked various
questions when he was being booked. 496 U.S. at 585-86. Specifically, the defendant
was asked, inter alia, for identifying information such as his name, address, and date of
birth, along with the date of his sixth birthday. The high Court considered the issue of
whether the defendant’s statements during the booking process were testimonial, and,
thus, subject to the Fifth Amendment privilege against self-incrimination, which was
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implicated because the defendant had not been provided with Miranda warnings. Id. at
589-90. The Court held that descriptions by police of the defendant’s speech as “slurred,”
although incriminating, were not testimonial, but akin to other physical characteristics that
do not enjoy Fifth Amendment protection. Id. at 590-91. However, the substance of the
defendant’s answers, specifically involving his birthday, were held to be testimonial. The
Muniz Court emphasized that the Fifth Amendment spares an accused from “having to
reveal, directly or indirectly, his knowledge of facts relating him to the offense or from
having to share this thoughts and beliefs with the Government.” Id. at 595 (citation
omitted). Moreover, the Court reasoned that when the defendant was asked about his
birthday, he had to admit that he did not know, or answer untruthfully, raising the specter
of the “cruel trilemma.” Id. at 596. This, according to the Court, was entirely consistent
with the Court’s prior admonition that “[t]he vast majority of verbal statements thus will be
testimonial” because they likely “convey information or assert facts.” Id., 496 U.S. at 597(quoting Doe II, 487 U.S. at 213). Thus, the testimonial statements revealing the contents
of the defendant’s own mind disclosed consciousness of fact subject to the privilege.
From this foundational law noted above, we can distill certain guiding principles.
First, the Supreme Court has made, and continues to make, a distinction between
physical production and testimonial production. As made clear by the Court, where the
government compels a physical act, such production is not testimonial, and the privilege
is not recognized. See Holt; Doe II. Second, an act of production, however, may be
testimonial when the act expresses some explicit or implicit statement of fact that certain
materials exist, are in the defendant’s custody or control, or are authentic. See Fisher;
Hubbell. The crux of whether an act of production is testimonial is whether the
government compels the defendant to use the “contents of his own mind” in explicitly or
implicitly communicating a fact. See Doe II; Hubbell. Third, and broadly speaking, the
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high Court has recognized that the vast majority of compelled oral statements of facts will
be considered testimonial, as they convey information or assert facts. See Muniz; Doe
II. This is consistent with the Court’s deep concern regarding placing a suspect in the
“cruel trilemma” of telling the truth, lying and perjuring himself, or refusing to answer and
facing contempt and jail. Id. Indeed, the Court has unanimously concluded that “[t]he
expression of the contents of an individual’s mind” is testimonial communication for
purposes of the Fifth Amendment. Doe II, 487 U.S. at 210 n.9.
Finally, and consistent with this historical repulsion of the prospect of compelling a
defendant to reveal his or her mental impressions, we find it particularly revealing that,
when addressing Justice Stevens’s dissent in Doe II, the majority of the Court noted that
compelling the defendant to sign the bank disclosure forms was more akin to “be[ing]
forced to surrender a key to a strongbox containing incriminating documents” than it was
to “be[ing] compelled to reveal the combination to [petitioner’s] wall safe.” Id., at 210 n.9.
This is a critical distinction. Consistent with a physical/mental production dichotomy, in
conveying the combination to a wall safe, versus surrendering a key to a strongbox, a
person must use the “contents of [their] own mind.” If one is protected from telling an
inquisitor the combination to a wall safe, it is a short step to conclude that one is protected
from telling an inquisitor the password to a computer.
Based upon these cases rendered by the United States Supreme Court regarding
the scope of the Fifth Amendment, we conclude that compelling the disclosure of a
password to a computer, that is, the act of production, is testimonial. Distilled to its
essence, the revealing of a computer password is a verbal communication, not merely a
physical act that would be nontestimonial in nature. There is no physical manifestation
of a password, unlike a handwriting sample, blood draw, or a voice exemplar. As a
passcode is necessarily memorized, one cannot reveal a passcode without revealing the
[J-42-2019] - 19
contents of one’s mind. Indeed, a password to a computer is, by its nature, intentionally
personalized and so unique as to accomplish its intended purpose ― keeping information
contained therein confidential and insulated from discovery. Here, under United States
Supreme Court precedent, we find that the Commonwealth is seeking the electronic
equivalent to a combination to a wall safe — the passcode to unlock Appellant’s computer.
The Commonwealth is seeking the password, not as an end, but as a pathway to the files
being withheld. As such, the compelled production of the computer’s password demands
the recall of the contents of Appellant’s mind, and the act of production carries with it the
implied factual assertions that will be used to incriminate him. Thus, we hold that
compelling Appellant to reveal a password to a computer is testimonial in nature.
Numerous other courts have come to similar conclusions. See, e.g., In re Grand
Jury Subpoena Duces Tecum Dated March 25, 2011, 670 F.3d 1335, 1346 (11th Cir.
2012) (holding “the decryption and production of the hard drives would require the use of
the contents of Doe’s mind and could not be fairly characterized as a physical act that
would be nontestimonial in nature,” thus Fifth Amendment protections were triggered);
United States v. Kirschner, 823 F.Supp.2d 665 (E.D. Mich. 2010) (finding the government
could not compel the defendant to reveal his password because this amounted to
“testimony” from him which would “requir[e] him to divulge through his mental processes
his password”).6
This, however, does not end our analysis. As noted above, the United States
Supreme Court has found information, otherwise testimonial in nature, to be unprotected
where the production of such information is a foregone conclusion. In essence, this
6 In this regard, we reject the Commonwealth’s seemingly newly-raised contention that
there might be a slip of paper containing the password which would be covered by the
trial court’s order, Commonwealth’s Brief at 1. There has been no suggestion in the
proceedings in this matter that such a paper exists, and this case has proceeded under
the assumption of an oral or written compulsion of Appellant to provide the password.
[J-42-2019] - 20
judicial toleration of certain compelled testimony renders otherwise privileged testimonial
communication non-testimonial. Specifically, under a foregone conclusion analysis, the
Supreme Court has reasoned that an act of production does not render communication
testimonial where the facts conveyed already are known to the government such that the
evidence sought “adds little or nothing to the sum total of the Government’s information.”
Fisher, 425 U.S. at 411. Thus, what is otherwise testimonial in nature is rendered non-
testimonial, as the facts sought to be compelled are a foregone conclusion. As described
above, for the exception to apply, the government must establish its knowledge of: (1) the
existence of the evidence demanded; (2) the possession or control of the evidence by the
defendant; and (3) the authenticity of the evidence.
Based upon the United States Supreme Court’s jurisprudence surveyed above, it
becomes evident that the foregone conclusion gloss on a Fifth Amendment analysis
constitutes an extremely limited exception to the Fifth Amendment privilege against self-
incrimination. The Supreme Court has spoken to this exception on few occasions over
the 40 years since its recognition in Fisher, and its application has been considered only
in the compulsion of specific existing business or financial records. See Doe I; Doe II;
Hubbell. Its circumscribed application is for good reason. First, the Fifth Amendment
privilege is foundational. Any exception thereto must be necessarily limited in scope and
nature. Moreover, business and financial records are a unique category of material that
has been subject to compelled production and inspection by the government for over a
century. See, e.g., Shapiro v. United States, 335 U.S. 1, 33 (1948). The high Court has
never applied or considered the foregone conclusion exception beyond these types of
documents. Indeed, it would be a significant expansion of the foregone conclusion
rationale to apply it to a defendant’s compelled oral or written testimony. As stated by the
Supreme Court, “[t]he essence of this basic constitutional principle is ‘the requirement
[J-42-2019] - 21
that the [s]tate which proposes to convict and punish an individual produce the evidence
against him by the independent labor of its officers, not by the simple cruel expedient of
forcing it from his own lips.’” Estelle v. Smith, 451 U.S. 454, 462 (1981) (emphasis
original). Broadly circumventing this principle would undercut this foundational right.
The Court’s decisions have been ambiguous concerning the breadth of the
rationale as well as its value. See Hubbell, 530 U.S. at 44 (“Whatever the scope of this
‘foregone conclusion’ rationale. . . .”); Fisher, 425 U.S. at 411 (finding that to succeed, the
government must show that the sought after information is a “foregone conclusion” in that
it “adds little or nothing to the sum total of the Government’s information.”) Thus, generally
speaking, the exception to a large degree appears to be intentionally superfluous; hence,
the accommodation to the government is of limited value. Accordingly, by definition,
application of the foregone conclusion analysis in any given case will not be fatal to the
government’s prosecution.
Finally, the prohibition of application of the foregone conclusion rationale to areas
of compulsion of one’s mental processes would be entirely consistent with the Supreme
Court decisions, surveyed above, which uniformly protect information arrived at as a
result of using one’s mind. To broadly read the foregone conclusion rationale otherwise
would be to undercut these pronouncements by the high Court. See Doe II; Hubbell;
Muniz. When comparing the modest value of this exception to one’s significant Fifth
Amendment privilege against self-incrimination, we believe circumscribed application of
the privilege is in order.
We acknowledge that, at times, constitutional privileges are an impediment to the
Commonwealth. Requiring the Commonwealth to do the heavy lifting, indeed, to shoulder
the entire load, in building and bringing a criminal case without a defendant’s assistance
may be inconvenient and even difficult; yet, to apply the foregone conclusion rationale in
[J-42-2019] - 22
these circumstances would allow the exception to swallow the constitutional privilege.
Nevertheless, this constitutional right is firmly grounded in the “realization that the
privilege, while sometimes ‘a shelter to the guilty,’ is often ‘a protection to the innocent.’”
Doe II, 487 U.S. at 213. Moreover, there are serious questions about applying the
foregone conclusion exception to information that manifests through the usage of one’s
mind. As expressed by the California Court of Appeals in a matter involving an order
compelling the production of a weapon allegedly used in a crime:
Implicit in the prosecution's position, and the court's order, is
the argument that independent evidence establishes
defendant’s possession of the gun at the time of the offense
and after. . . . The Commonwealth does not simply assert that
the evidence to be gained by production is here
inconsequential or nonincriminating; rather it says that the
evidence is unworthy of Fifth Amendment protection because
it merely enhances other persuasive evidence obtained
without the defendant's help. The Commonwealth's argument
is indeed curious. It is as if we were asked to rule that a
confession could be coerced from an accused as soon as the
government announced (or was able to show) that [in] a future
trial it could produce enough independent evidence to get past
a motion for a directed verdict of acquittal.
Goldsmith v. Superior Court, 152 Cal. App. 3d 76, 87 n.12 (1984) (quotations and citations
omitted) (emphasis added).
We appreciate the significant and ever-increasing difficulties faced by law
enforcement in light of rapidly changing technology, including encryption, to obtain
evidence. However, unlike the documentary requests under the foregone conclusion
rationale, or demands for physical evidence such as blood, or handwriting or voice
exemplars, information in one’s mind to “unlock the safe” to potentially incriminating
[J-42-2019] - 23
information does not easily fall within this exception.7 Indeed, we conclude the
compulsion of a password to a computer cannot fit within this exception.
Thus, we hold that the compelled recollection of Appellant’s password is
testimonial in nature, and, consequently, privileged under the Fifth Amendment to the
United States Constitution. Furthermore, until the United States Supreme Court holds
otherwise, we construe the foregone conclusion rationale to be one of limited application,
and, consistent with its teachings in other decisions, believe the exception to be
7 Because we are dealing with a motion to require an individual to recall and disclose a
memorized password to a computer, in essence, revealing the contents of one’s own
mind, we need not address the related, but distinct, area involving biometric features like
fingerprints, thumbprints, iris scanning, and facial recognition, or whether the foregone
conclusion rationale would be appropriate in these circumstances. The dissent, however,
makes much of the potential for inconsistent results in “future cases” involving these types
of biometric passwords. Dissenting Opinion at 8-9. Yet, not only are these
communications not before our Court, it is the United States Supreme Court that long ago
has created the dichotomy between physical and mental communication. See Holt, 218
U.S. at 252-53 (“the prohibition of compelling a man in criminal court to be witness against
himself is a prohibition of the use of physical or moral compulsion to extort
communications from him, not an exclusion of his body as evidence when it may be
material.”); Doe II, 487 U.S. at 210 n.9. (finding the expression “more like ‘be[ing] forced
to surrender a key to a strong box containing incriminating documents’ than it is like
be[ing] compelled to reveal the combination to [petitioner’s] wall safe.”).
[J-42-2019] - 24
inapplicable to compel the disclosure of a defendant’s password to assist the
Commonwealth in gaining access to a computer.8 9 10
8 After oral argument, we granted Appellant’s Motion for Leave to File Post-Argument
Submission and now grant the Commonwealth’s Motion for Leave to File Response to
Post-Argument Submission with respect to this issue. However, as we resolve this matter
in favor of Appellant exclusively under the Fifth Amendment to the United States
Constitution, we need not address his additional contention that the Pennsylvania
Constitution provides greater protections than the federal charter.
9 Even if we were to find that the foregone conclusion exception could apply to the
compulsion to reveal a computer password, we nevertheless would conclude that the
Commonwealth has not satisfied the requirements of the exception in this matter. As
noted above, for the compelled evidence to fall within the exception, the Commonwealth
must establish: (1) the existence of the evidence demanded; (2) the possession or control
of the evidence by the defendant; and (3) the authenticity of the evidence.
As the Superior Court recounted below, there is a high probability that child pornography
exists on Appellant’s computer, as evidenced by: Appellant’s IP address utilizing a peer-
to-peer file sharing network to share videos depicting child pornography; the fact that the
sole computer seized had hardwire Internet; and the fact that Appellant “implied as to the
nefarious contents of the computer on numerous occasions.” Davis, 176 A.3d at 876.
However, for the exception to apply, the facts sought to be compelled must be already
known to the Commonwealth. It is not merely access to the computer that the
Commonwealth seeks to obtain through compelling Appellant to divulge his computer
password, but all of the files on Appellant’s computer. The password is merely a means
to get to the computer’s contents. While it is conceivable, and indeed, likely, that a single
video containing child pornography (as previously viewed by the OAG agents) may be on
the computer, the compelled revelation of the password could lead to a trove of a
presently unknown number of files. Indeed, the record establishes that the entire hard
drive of the computer was encrypted and “there was no data that could be read without
opening the TrueCrypt volume.” N.T. Hearing, 1/14/16, at 46. Agent Cook could only
confirm that there was “Windows on the computer and the TrueCrypt,” and he had no
knowledge of any specific files other than the operating system files. Id. at 50-51.
In sum, because the Commonwealth has failed to establish that its search is limited to the
single previously identified file, and has not asserted that it is a foregone conclusion as to
the existence of additional files that may be on the computer, which would be accessible
to the Commonwealth upon Appellant’s compelled disclosure of the password, we find
the Commonwealth has not satisfied the foregone conclusion exception.
10 The dissent agrees that the information the Commonwealth seeks to compel is
testimonial in nature. Dissenting Opinion at 2. The dissent, however, contends that, in
these circumstances, governmentally forced testimony involving a computer password
[J-42-2019] - 25
falls within the foregone conclusion exception to the Fifth Amendment privilege against
self-incrimination. Respectfully, the dissent’s position is unpersuasive.
Initially, the dissent broadly dilutes the historic and contextual underpinnings of the
application of the foregone conclusion exception, which, as noted above, constitutes an
extremely narrow exception. Indeed, the high Court has found the exception to have
been satisfied only one time in the over 40 years since it was created; moreover, the
exception’s provenance is exclusively in cases involving subpoenaed paper documents
― never in the context of oral testimony. Thus, application of the foregone conclusion
exception outside of this narrow context is dubious at best. For that reason, we will not
apply the foregone conclusion exclusion in the absence express guidance from the high
Court.
Furthermore, the dissent adopts a minority interpretation of that exception which
focuses on the password itself, rather than on the underlying files. Yet, even employing
this password-centric approach, the circumstances, sub judice, do not satisfy the
foregone conclusion doctrine. As set forth above, and noted by the dissent, to satisfy the
foregone conclusion doctrine, the government must establish, inter alia, the authenticity
of the evidence, i.e., the password, with reasonable particularity. Of course, here, the
Commonwealth cannot establish with reasonable particularity the authenticity of the
password. Rather, authenticity may only be established after the information ― the
password ― is turned over to the Commonwealth. The dissent is turning the authenticity
requirement on its head, allowing the Commonwealth to satisfy its burden by, in essence,
saying, “Turn over the facts we want, and we will tell you if it is authentic or not.” Of
course, this is not how the exception works. Rather, the burden is on the Commonwealth
to establish its independent knowledge of, inter alia, the authenticity of the documents or
evidence sought, before that information is properly compelled over a defendant’s Fifth
Amendment assertion of his or her right against self-incrimination. Fisher. Indeed, the
dissent’s password-centric logic was recently rejected by the Third District Court of
Appeal of Florida in Pollard v. State, 2019 WL 2528776 (Fla. Dist. Ct. App. June 20, 2019),
where the court forcefully explained the logical shortcomings of this approach:
[The foregone conclusion exception’s] three-part test is tautological when
applied to passwords because all password-protected cellphones have an
“authentic” password, making the [State v. Stahl, 206 So.3d 124 (Fla. Dist.
Ct. App. 2016)] test somewhat circular. In this regard, the court in Stahl
said that ‘[i]f the phone or computer is accessible once the passcode or key
has been entered, the passcode or key is authentic. 206 So.3d at 136,
which begs the question of whether sufficient evidence established that the
passcode is authentic before it had been compelled and used successfully.
The state must have sufficient proof of authenticity before it can compel the
password's production; simply because a compelled password unlocks a
cellphone after the fact doesn't make it authentic ex ante. To do otherwise
is “like telling an inquisitor the combination to a wall safe, not like being
forced to surrender the key to a strongbox.’ [citing Hubbell].
[J-42-2019] - 26
For the above-stated reasons, we reverse the order of the Superior Court and
remand the matter to the Superior Court, for remand to the trial court, for proceedings
consistent with our Opinion.
Jurisdiction relinquished.
Chief Justice Saylor and Justices Donohue and Wecht join the opinion.
Justice Baer files a dissenting opinion in which Justice Dougherty and Mundy join.
Pollard, 2019 WL 2528776 at *4.
Related thereto, and as noted above, the United States Supreme Court has limited
the application of this narrow exception to Fifth Amendment protections to contexts where
the facts sought “add[] little or nothing to the sum total of the Government’s information.”
Fisher, 425 U.S. at 411. Nothing could be farther from the case here, as the password
which the Commonwealth seeks to compel could disclose a vast swath of files of which
the Commonwealth, it appears, currently has no knowledge.
Finally, and directly related thereto, the dissent gives scant attention or significance
to the Supreme Court’s consistent approach that revealing the contents of one’s mind is
protected by the Fifth Amendment. This unmistakable overarching jurisprudential theme
has been consistently applied in all of the high Court’s decisions in this area. Doe II;
Hubbell; Muniz. Indeed, the dissent speaks volumes by reducing to a footnote, without
analysis, its mention of the United States Supreme Court’s distinction between the
production of documents and the forced compulsion of mental processes such as the
combination to a safe, which, in the high Court’s view, plainly violates the Fifth
Amendment. Doe II; Hubbell. Simply stated, there is no meaningful distinction between
the government compelling a suspect to provide the combination to access a safe, and
the government forcing one to disclose a password to access a computer. Here, it is
unquestionably necessary for Appellant to make use of “the contents of his own mind” in
providing the password. In essence, the dissent’s approach is effectively the same as
compelling Appellant to affirm that, “I know the password, this is my computer, I have
knowledge of the existence and location of incriminating files, and I have the capability to
decrypt the files.” To accept the dissent’s position is to embrace a stance contrary to the
foundational privilege against the probing of an individual’s mind to compel
communication that is incriminating.
[J-42-2019] - 27