encrypted the hard drive using the same encryption
software as that found on the recovered drive.

2018 WL 1964588
United States District Court, N.D. California.

The magistrate judge granted the government’s
application on March 20, 2018, ordering Spencer to aid in
decrypting the three devices. In re Search of a Residence
in Aptos, Calif. 95003, No. 17-mj-70656-JSC, 2018 WL
1400401 (N.D. Cal. March 20, 2018). Spencer filed a
motion for relief from the order on April 16. See Mot. for
Relief (dkt. 73).

UNITED STATES OF AMERICA, Plaintiff,
v.
RYAN MICHAEL SPENCER, Defendant.
Case No. 17-cr-00259-CRB-1
 
04/26/2018

II. LEGAL STANDARD
A party may file a motion for relief with the district court
from a dispositive pre-trial ruling by a magistrate judge.
Fed. R. Crim. P. 59(b)(2). A district court’s review of a
dispositive order by a magistrate judge is de novo. Fed. R.
Crim. P. 59(b)(3).

CHARLES R. BREYER, United States District Judge

ORDER DENYING [DKT. 73] MOTION FOR
RELIEF FROM ORDER OF MAGISTRATE JUDGE
*1 Ryan Michael Spencer moves for relief from an order
by a magistrate judge compelling him to decrypt several
electronic devices. In re Search of a Residence in Aptos,
Calif. 95003, No. 17-mj-70656-JSC, 2018 WL 1400401
(N.D. Cal. March 20, 2018). Because the magistrate judge
properly applied the foregone conclusion doctrine to the
facts of the case, the motion is DENIED.

The Fifth Amendment to the United States Constitution
provides that “No person...shall be Compelled in any
criminal case to be a Witness against himself.” It applies
“only when the accused is compelled to make a
Testimonial Communication that is incriminating.” Fisher
v. United States, 425 U.S. 391, 408 (1976). Accordingly,
the Fifth Amendment is not violated whenever the
government compels a person to turn over incriminating
evidence. Id. at 409. Instead, it is only implicated when
the act of production itself is both “testimonial” and
“incriminating.” Id. at 410.

I. BACKGROUND
On April 26, 2017, a magistrate judge authorized a
warrant for the FBI to search a residence believed to be
inhabited by Spencer. Specifically, the warrant authorized
the search of the premises and any computers, storage
media, routers, modems, and network equipment
contained within, as well as Spencer himself, for evidence
of child pornography.

The act of production is neither testimonial nor
incriminating when the concession implied by the act
“adds little or nothing to the sum total of the
Government’s information by conceding that he in fact
has the [evidence]”—that is, where the information
conveyed by the act of production is a “foregone
conclusion.” Id. at 411. It is important to stress the limited
scope of the “foregone conclusion” rule. It only applies
where the testimony at issue is an implied statement
inhering in the act of production itself. See United States
v. Apple MacPro Computer, 851 F.3d 238, 247 (3d Cir.
2017). Otherwise, the government cannot compel a
self-incriminating statement, regardless of whether the
contents of the statement are a “foregone conclusion.” See
Fisher, 425 U.S. at 429 (Brennan, J., concurring) (whether
testimony is considered incriminating under the Fifth
Amendment does not “turn on the strength of the
Government’s case”).

The FBI searched the residence and seized 12 electronic
media items. It determined that some of these contained
child pornography. However, several of the devices were
encrypted, and their contents were therefore inaccessible.
The United States sought an order under the All Writs
Act, 28 U.S.C. § 1651, compelling Spencer to decrypt
three of these devices: a smartphone, a laptop, and an
external hard drive. Spencer admitted ownership of the
smartphone and laptop, and provided passwords to bypass
the lock screens (though not to decrypt portions of the
devices’ hard drives).
The external hard drive was seized from the same desk as
the laptop. Spencer said he owned a hard drive matching
the description of the one seized, and that he had

*2 For instance, the government could not compel
Spencer to state the password itself, whether orally or in
1

 writing.1 But the government is not seeking the actual
passcode. Rather, it seeks the decrypted devices. Spencer
argues that production of the devices would not fall
within the act-of-production doctrine because producing
the devices would require him to enter the decryption
password. In other words, Spencer argues that because the
government cannot compel him to state the passwords to
the devices, it cannot compel him to decrypt the devices
using the passwords, either. This argument has some
superficial appeal, and finds support in a dissent by
Justice John Paul Stevens, who once contended that a
defendant could “not...be compelled to reveal the
combination to his wall safe” either “by word or deed.”
Doe, 487 U.S. at 219 (Stevens, J., dissenting) (emphasis
added). While the analogy is not perfect, we may assume
that storing evidence in encrypted devices is equivalent to
securing items in a safe protected by a combination, and
that Justice Stevens’ reasoning applies equally to the
situation at hand. See In re Grand Jury Subpoena Duces
Tecum Dated March 25, 2011, 670 F.3d 1335, 1346 (11th
Cir. 2012).

So: the government’s request for the decrypted devices
requires an act of production. Nevertheless, this act may
represent incriminating testimony within the meaning of
the Fifth Amendment because it would amount to a
representation that Spencer has the ability to decrypt the
devices. See Fisher, 425 U.S. at 410. Such a statement
would potentially be incriminating because having that
ability makes it more likely that Spencer encrypted the
devices, which in turn makes it more likely that he
himself put the sought-after material on the devices.
The next question is whether the foregone conclusion rule
applies. There is some confusion in the case law regarding
what exactly the relevant “foregone conclusion” must be
where the government seeks decryption of hard drives.
The Eleventh Circuit has held that the government must
show that it is a foregone conclusion not only that the
defendant has the ability to decrypt the device(s), but also
that certain files are on the device(s). In re Grand Jury
Subpoena, 670 F.3d at 1347. The In re Grand Jury
Subpoena court denied the government’s attempt to
compel the defendant to decrypt the device at issue in that
case because it “ ‘ha[d] not shown that it had any prior
knowledge of either the existence or the whereabouts of
the [files]’ ” on the device. Id. (alterations in original).

But a rule that the government can never compel
decryption of a password-protected device would lead to
absurd results. Whether a defendant would be required to
produce a decrypted drive would hinge on whether he
protected that drive using a fingerprint key or a password
composed of symbols. See New York v. Quarles, 467
U.S. 649, 671 (1984). Similarly, accepting the analogy to
the combination-protected safe, whether a person who
receives a subpoena for documents may invoke the Fifth
Amendment would hinge on whether he kept the
documents at issue in a combination safe or a key safe.
See Doe, 487 U.S. at 210 n.9. But this should make no
difference, because opening the safe does not require
producing the combination to the government. Whether
turning over material, either in the form of documents or
bits, implicates the Fifth Amendment should not turn on
the manner in which the defendant stores the material.

*3 The Eleventh Circuit was relying on precedent in
which the government requested specific documents from
a defendant pursuant to subpoena. See Fisher, 425 U.S. at
410. In Fisher, “Compliance with the subpoena tacitly
concede[d] the existence of the papers demanded and
their possession or control” by the defendant. Id. Not so in
cases like the one at hand, in which the government seeks
entire hard drives. Turning over the decrypted devices
would not be tantamount to an admission that specific
files, or any files for that matter, are stored on the devices,
because the government has not asked for any specific
files. Accordingly, the government need only show it is a
foregone conclusion that Spencer has the ability to
decrypt the devices. 2 That the government may have

1

See Doe v. United States, 487 U.S. 201, 210 n.9 (1988)
(stating in dicta that compelling someone to reveal the
combination to his wall safe is testimonial for purposes of the
Fifth Amendment); Wayne R. LaFave et al., 3 Criminal
Procedure § 8.13(a) (4th ed. 2017) (“[R]equiring the subpoenaed
party to reveal a passcode that would allow [the government] to
perform the decryption...would require a testimonial
communication standing apart from the act of production, and
therefore make unavailable the foregone conclusion doctrine.”);
accord, United States v. Kirschner, 823 F. Supp. 2d 665, 668-69
(E.D. Mich. 2010); In re Boucher, No. 2:06-mj-91, 2007 WL
4246473, at *3-4 (D. Vt. Nov. 29, 2007), overruled in part on
other grounds, No. 2:06-mj-91, 2009 WL 424718 (D. Vt. Feb.
19, 2009); Com. Of Virginia v. Baust, No. CR14-1439, 2014
WL 6709960, at *3.

2

See Orin Kerr, Fifth Amendment protects passcode on
smartphones, court holds, Wash. Post (Sept. 24, 2015),
https://www.washingtonpost.com/news/volokhconspiracy/wp/2015/09/24/fifth-amendment-protects-passcode-o
n-smartphones-courtholds/?noredirect=on&utm_term=.92228f257a5d (“The details
of what records are on the phone should be irrelevant to whether
the foregone conclusion doctrine applies because access to the
phone is independent of what records are stored inside it.
Handing over the passcode has the same testimonial aspect
regardless of what is on the phone.”); Apple MacPro Computer,
851 F.3d at 248 n.7; In re Search of a Residence in Aptos, Calif.
95003, 2018 WL 1400401, at *6 n.10.

2

 access to more materials where it seeks a hard drive
through a search warrant than it would have had if it
sought specific files through subpoena is simply a matter
of the legal tool the government uses to seek access. To
the extent Spencer contends that the government has not
adequately identified the files it seeks, that is an issue
properly raised under the Fourth Amendment, not the
Fifth.

III. DISCUSSION
The question, accordingly, is whether the government has
shown by clear and convincing evidence that Spencer’s
ability to decrypt the three devices is a foregone
conclusion. It has. All three devices were found in
Spencer’s residence. Spencer has conceded that he owns
the phone and laptop, and has provided the login
passwords to both. Moreover, he has conceded that he
purchased and encrypted an external hard drive matching
the description of the one found by the government. This
is sufficient for the government to meet its evidentiary
burden. The government may therefore compel Spencer to
decrypt the devices. Once Spencer decrypts the devices,
however, the government may not make direct use of the
evidence that he has done so. See Robert P. Mosteller,
Simplifying Subpoena Law: Taking the Fifth Amendment
Seriously, 73 Va. L. Rev. 1, 110 n.108 (1987). If it really
is a foregone conclusion that he has the ability to do so,
such that his decryption of the device is not testimonial,
then the government of course should have no use for
evidence of the act of production itself.

The only remaining question insofar as the applicable
legal framework goes is what standard the Court must
apply in evaluating whether Spencer’s knowledge of the
passwords is a “foregone conclusion.” In the context of
requests for specific documents, the government is
required to establish independent knowledge “of the
existence, possession, and authenticity of subpoenaed
documents with ‘reasonable particularity’ before the
communication inherent in the act of production can be
considered a foregone conclusion.” United States v.
Hubbell, 167 F.3d 552, 579 (D.C. Cir. 1999), aff’d, 530
U.S. 27 (2000). The “reasonable particularity” standard
appears to have been derived from the standard courts use
to evaluate whether a warrant is sufficiently specific
under the Fourth Amendment. See Stanford v. State of
Tex., 379 U.S. 476, 485 (1965).

*4 Spencer also contends that the magistrate judge erred
in holding that the government properly relies on the All
Writs Act, 28 U.S.C. § 1651, to compel Spencer to
decrypt the devices at issue. She did not. Spencer is “not
‘far removed from the underlying controversy’ ”;
compliance “ ‘require[s] minimal effort’ ”; and without
Spencer’s assistance, “ ‘there is no conceivable way in
which the [search warrant] authorized by the District
Court could [be] successfully accomplished.’ ” See Apple
MacPro Computer, 851 F.3d at 246 (quoting United
States v. New York Tel. Co., 434 U.S. 159, 174–75
(1977)) (alterations in original).

Courts have continued to apply that standard to cases
involving compelled decryption under the Fifth
Amendment. See, e.g., In re Grand Jury Subpoena, 670
F.3d at 1349; Apple MacPro Computer, 851 F.3d at 247.
But it is nonsensical to ask whether the government has
established with “reasonable particularity” that the
defendant is able to decrypt a device. While physical
evidence may be described with more or less specificity
with respect to both appearance and location, a
defendant’s ability to decrypt is not subject to the same
sliding scale. He is either able to do so, or he is not.
Accordingly, the reasonable particularity standard cannot
apply to a defendant’s ability to decrypt a device. (In any
event, “reasonable particularity” is not really an
evidentiary standard at all. It is better viewed as a
substantive standard that helps to ensure that any
testimony at issue really is a “foregone conclusion.”)

IV. CONCLUSION
The magistrate judge’s order was correct in all respects.
The motion for relief is DENIED.
IT IS SO ORDERED.

The appropriate standard is instead clear and convincing
evidence. This places a high burden on the government to
demonstrate that the defendant’s ability to decrypt the
device at issue is a foregone conclusion. But a high
burden is appropriate given that the “foregone
conclusion” rule is an exception to the Fifth
Amendment’s otherwise jealous protection of the
privilege against giving self-incriminating testimony. See
Fisher, 425 U.S. at 429 (Brennan, J., concurring).

Dated: April 26, 2018 CHARLES R. BREYER
United States District Judge

3