Does the foregone conclusion exception to the Fifth Amendment privilege against self-incrimination apply to the compelled production of passwords to encrypted electronic devices?

QUESTIONS PRESENTED For more than forty years, courts have allowed law enforcement authorities to compel an individual to disclose information when the . information adds little or nothing to the sum total of information already possessed by the government and is a foregone conclusion. During i that same time, advances in technology have : changed the ways information may be stored to ; | include electronic media as opposed to paper documents, which were the exclusive manner of keeping business records in former days. Concurrent with the development of electronic media has been the creation of the means of j making information inaccessible through | virtually unbreakable encryption technology. | Both developments have given rise to criminal : activity that takes advantage of new technology | and an urgent need for law enforcement to access data and information kept beyond its lawful reach by the encryption technology. This Court has not considered the foregone . conclusion doctrine in the context of electronic media and encryption. | 1. Does the foregone conclusion exception to the Fifth Amendment privilege against self | incrimination established in Fisher v. United | States, 425 U.S. 391 (1976) and its progeny , | apply to the compelled production of passwords to encrypted electronic devices when the government has seized a device pursuant to a i valid search warrant and has independent | knowledge that the password exists, is known by | | | Fi | | | : i | i i | | | the suspect, and will decrypt the device, such that the compelled information itself lacks : ‘ testimonial significance and any testimony : implied by the compelled act is already known by the government, not in issue, and adds little or nothing to the sum total of the government’s . / information? 2. Assuming the foregone conclusion exception a applies, what is the government’s burden of proof to support the exception, and more t specifically, must the government demonstrate knowledge relating solely to the password sought or must it also demonstrate knowledge of ; the contents of the encrypted device for which a judge has already authorized a search? : |