A decision last week by U.S. Magistrate Judge Jacqueline Scott Corley of the Northern District of California ordered a criminal defendant to decrypt his device, and could mark a troubling shift in Fifth Amendment law in favor of greater government access to encrypted data.

The defendant subject to the Ninth Circuit’s order to decrypt was charged with possession and distribution of child pornography. He cooperated in unlocking his iPhone and laptop for police, but investigators were unable to access encrypted folders on those devices.

The Ninth Circuit ultimately found that the defendant, by handing over his passwords, provided prosecutors with information that was a “foregone conclusion” and exempt from Fifth Amendment protection. The Fifth Amendment of the United States Constitution generally protects a witness from being forced to provide incriminating information that could expose her to an accusation or criminal charge. The “foregone conclusion” is an exception to Fifth Amendment protection. Information is a “foregone conclusion” if it is already known to the government-meaning that the government could describe the pertinent facts of that information with reasonable particularity before they are provided by the witness.

Corley ruled that because law enforcement officials had already demonstrated through other evidence that the defendant knew the passwords to unlock the devices, his knowledge of the password was already a foregone conclusion. As a result, the Court decided that the defendant can be ordered to unlock his devices without violating his Fifth Amendment rights.

Corley’s ruling for the Ninth Circuit stands in contrast to a 2012 ruling from the Eleventh Circuit that in order for the foregone conclusion doctrine to apply, prosecutors had to show with “reasonable particularity” that they already knew what was on the encrypted hard drives seized during a child pornography investigation. They could not, and so the court reversed a decision by a district judge compelling decryption.

The Ninth Circuit’s ruling carves out from the Fifth Amendment a worrisome shortcut for investigators to decrypt electronic devices. The government will now likely be able to obtain an order to decrypt in most child pornography and other cases involving digital evidence because proving that an accused knows the password to her device is simple. It could be as simple as showing that the device was in the accused’s pocket.

As a Los Angeles criminal defense attorney who specializes in child pornography cases, I have gained specialized expertise in the Fifth Amendment case law as it applies to encryption. My respectful view is that the Ninth Circuit erred in its ruling. The crux of the self-incrimination privilege is that the government cannot compel evidence from the minds of the suspects themselves. Compelled decryption is inherently testimonial because it compels a suspect to use the contents of their mind to translate unintelligible evidence into a form that can be used against them. The Fifth Amendment, in my view, provides an absolute privilege against such self-incriminating compelled decryption.

The United States Supreme Court has stated:

Too many, even those who should be better advised, view [the Fifth Amendment] privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege.

In the modern digital age where encryption is routine practice for individuals and businesses alike to protect their sensitive information, the Ninth Circuit ruling should be worrisome to all.

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As a criminal defense lawyer in Los Angeles who specializes in sex crimes, I have witnessed firsthand the devastating effects that California’s online sex offender registry has on offenders’ lives and reputations well after they served their sentences. California has long been one of the toughest states on the punishment of sex offenders. The state has over 105,000 designated sex offenders, and, until recently, California was just one of four states that mandated lifetime enrolment on the sex offender’s registry. The lack of discussion among California lawmakers about who should have access to California’s sex offender registry in the wake of reform is troublesome. Under the revised sex offender registry system, many sex offenders will continue to appear on California’s online public sex offender registry for one or more decades after completing their sentences. Public searches of registrants for improper purposes will continue to imperil offenders’ employment, housing and other opportunities vital to reintegration without any proven public safety benefit. California must next address the registry’s availability to the public online.

In October 2017, California passed a law that will end lifetime listings for lower-level sex offenders who pose little risk of committing new crimes. This law, formerly referred to as Senate Bill No. 384, is a sensible first step toward addressing the deleterious effects of California’s bloated sex offender registry. The bill creates a three-tiered system which lawmakers claim will allow sex crimes investigators to focus on those offenders who pose the greatest risk to public safety. Under the reformed system, low-level sex offenders can petition to be removed from California’s sex offender registry after ten to twenty years if they have not committed another serious of violent felony or sex crime. The highest level of offenders, tier three offenders, will remain on the list for life. If certain criteria are met, tier three offenders may petition to be reassigned as a tier two offender. Those who believe they may be eligible to have their tier three sentences reduced should discuss their options with a lawyer who specializes in sex crimes.

Lawmakers understandably streamlined the sex offender registry to make it a more refined law enforcement tool, but failed to measure or justify the purported public safety benefits of keeping the registry open to the public. This is probably because sex offender registries are not evidence-based approaches to deterring sex crimes.

As a criminal lawyer, I appreciate the sense of concern and urgency that has prompted these laws. Promoting public safety by holding offenders accountable and by instituting effective crime prevention measures is a core government function. At the same time, discussion surrounding the passing of Senate Bill No. 384 highlights that the registration laws are overbroad in scope and overlong in duration, requiring people to register who pose no safety risk. In addition, under community notification laws, anyone anywhere can access online sex offender registries for purposes that may have nothing to do with public safety, even though doing so is outlawed in California. Harassment of and violence against registrants have been the predictable result.

California’s next step in reforming our sex offender registry laws should be to assess whether the registry ought to be taken offline. If our state government will not respond to this issue, a constitutional challenge to the online availability of California’s sex offender registry could be fruitful. For instance, Colorado’s sex offender registry was recently challenged in federal court with success.

In Millard v. Rankin, United States District Court Senior Judge Richard P. Matsch, sitting in the District of Colorado, recently found that Colorado’s sex offender registry constituted cruel and unusual punishment in the case of three plaintiffs. The plaintiffs complained that the Colorado sex offender registry’s requirements made it difficult for them to find employment and housing and set them up for harassment long after they served their prison sentences. Judge Matsch held that the sex offender registry violated provisions of the Eighth and Fourteenth Amendments. His Honour stopped short of granting an injunction in the case, only granting declaratory relief, but noted in his judgment that parties did not provide submissions regarding injunctive relief. A case for injunctive relief could reasonably be made in future litigation.

In September 2017, Montrose County in Colorado took its registry offline in response to the judgment. The action was taken despite the ruling’s narrow application to the applicants, showing that the ruling could have far-reaching implications. The possibility that Judge Matsch’s opinion could be applied statewide was no doubt a factor in the Colorado Attorney General’s appeal announcement. The case could go all the way to the United States Supreme Court and allow the Court to make updated rulings on sex offender registries across the country.

It is time for California to prevent unlimited dissemination of registry information by eliminating the state’s online sex offenders registry. Community notification should be undertaken only by law enforcement officers and only about those registrants who pose a significant risk of reoffending. Senate Bill No. 384 is promising because it shows that California lawmakers are willing to apply common sense when making laws pertaining to sex crimes, but now California must scrutinize the online sex offender registry with similar pragmatism and also an eye for civil rights and the importance of reintegrating offenders back into our neighbourhoods.

Attorney Karen L. Goldstein has been successfully defending people against sex crime charges for 14 years.

Call (888) 445-6313 for a free and confidential consultation to speak with an experienced sex crimes lawyer today.

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