Appellant Amanda Thompson was Arrested for Violating the Stone Problem

OPINION On October 16, 2018, Appellant Amanda Thompson was arrested for violating the Stone Agricultural Facility Trespass Act (“SAFTA”). Stone Rev. Stat. § 1-1366-2 (see Appendix A). Appellant appeals her conviction to this Court on two grounds. First, Appellant argues that the trial judge improperly denied her motion to dismiss the indictment, because SAFTA is a facially invalid content-based restriction on her First Amendment right to free speech. Second, Appellant argues that the trial judge erred in denying her motion to suppress, because entering her password into the hard drive constituted compelled, self-incriminatory testimony in violation of her Fifth Amendment privilege. For the reasons stated below, we AFFIRM Appellant’s conviction. Facts and Proceedings Below In March 2018, Appellant Amanda Thompson applied for an entry-level job working at Big-Farm-A, a Stone-based company and one of the largest beef producers in the United States. In addition to requesting standard information about her education and work experience, BigFarm-A’s application required Appellant to answer whether she had ever donated to certain animal rights organizations listed on the application. Big-Farm-A’s CEO testified that the application asked this question to root out animal rights activists seeking employment for the purpose of acting as whistleblowers. On her application and during her in-person interview, Appellant denied having made any donations to any animal rights organizations. Big-Farm-A hired her to begin work on March 26, 2018. and she worked at their facility until May 1, 2018, when she quit without notice. On May 7, 2018, an anonymous channel on YouTube published a seven-minute video containing spliced-together footage from Big-Farm-A facilities. This video garnered approximately seven million views in its first forty-eight hours online. Outrage over the conditions depicted on the video led to a widespread consumer boycott of Big-Farm-A’s products. As a result of the video and boycott, Big-Farm-A’s lost several lucrative contracts with fast food chains. Big-Farm-A conducted an internal investigation to determine who had captured and leaked the footage in the YouTube video. The investigators noticed the suspicious circumstances under which Appellant had quit her job–barely a month after being hired and shortly before the video was released. After confirming that Appellant was likely responsible for capturing and leaking the footage, Big-Farm-A filed a variety of civil claims against Appellant in an action unrelated to this criminal proceeding. The company then gave her name to state law enforcement. Appellant was subsequently arrested on October 16, 2018 for violating SAFTA. Stone Rev. Stat. § 1-1366-2. After arresting Appellant, law enforcement executed a warrant to search Appellant’s residence. Appellant does not challenge the issuance of that warrant or the validity of that search. Among her possessions, law enforcement found an external hard drive that was digitally encrypted. Before a Grand Jury, Appellee issued a subpoena to compel Appellant to decrypt the 2 hard drive. While Appellant admitted that she knew the password and could decrypt the hard drive, she nonetheless objected to the subpoena, invoking her Fifth Amendment privilege against self-incrimination. A trial judge heard arguments from both parties and determined that the act of decrypting the hard drive was not testimonial. The judge issued a court order compelling Appellant to input the password. Appellant preserved her Fifth Amendment objection, but complied. The decrypted hard drive contained a series of electronic journal entries that amounted to a full confession of all elements necessary to convict Appellant under SAFTA. Although Appellant denied having donated to any animal rights organizations on her application and in her employment interview, her journals revealed that she had made regular, anonymous, and untraceable cash donations to a variety of animal rights organizations over the previous five years. 1 Additionally, Appellant had learned that there were rumors of widespread animal abuse at Big-Farm-A, and, according to her journals, applied for her job at Big-Farm-A with the sole purpose of producing video footage documenting the rumored abuse. Finally, investigators found video files containing the raw footage of various Big-Farm-A facilities used in the YouTube video. Before trial, Appellant timely moved to dismiss her indictment on the grounds that SAFTA is an unconstitutional restriction on her First Amendment right to free speech. After the trial judge denied that motion, Appellant timely moved to suppress all evidence obtained from the hard drive, again asserting her Fifth Amendment privilege. The trial judge also denied that motion. 1 Ms. Thompson was otherwise qualified to be a farm aide and her supervisor at Big-Farm-A testified that she performed her duties “admirably.” 3 At trial, Appellee offered Appellant’s journal entries into evidence, using the discovery of the hard drive in Appellant’s house and Appellant’s entry of the password as foundational evidence of its accuracy, authenticity, and relevance. Appellant timely objected to this evidence on Fifth Amendment grounds; her objections were again overruled. Following her trial, a jury convicted Appellant of violating SAFTA, and the trial judge sentenced her to five years in prison, the maximum available penalty under SAFTA. She now appeals her conviction to this Court. Standard of Review This Court reviews constitutional questions de novo. See Bose Corp. v. Consumers Union, Inc., 466 U.S. 485, 508 n.27 (1984). Discussion 1. Motion to Dismiss the Indictment The Stone legislature enacted SAFTA in 2016, in response to the fallout from a previous undercover investigation that led to a different Stone agricultural company, which was one of the state’s largest employers at the time, declaring bankruptcy. 2 SAFTA imposes criminal penalties on an individual who “knowingly make a false statement of material fact in an application for employment at an agricultural production facility.” Stone Rev. Stat. § 1-1366-2(1). As part of SAFTA, the Stone Legislature additionally enacted a “Statement of Purpose” that cites “widespread employment fraud” as “devastating Stone’s agricultural industry.” Stone Rev. Stat. § 1-1366-1 (see Appendix A). The Statement of Purpose specifically cites the harms that arise when an applicant lies on their job application and then is either “manifestly unqualified for their 2 See generally Richard A. Oppel Jr., Taping of Farm Cruelty Is Becoming the Crime, N.Y. Times, April 7, 2013, at A1. 4 job, potentially endangering all the other workers through negligent operation of heavy equipment” or “actively intends to hurt the company that hires them.” Id. Appellant contends that SAFTA is an impermissible content-based regulation of speech in violation of the First Amendment because it penalizes making a “false statement of material fact.” Stone Rev. Stat. § 1-1366-2(1); see Animal Legal Def. Fund v. Wasden, 878 F.3d 1184, 1190 (9th Cir. 2018). Although Appellee concedes that SAFTA is a content-based regulation of speech, it contends that SAFTA is constitutional because it penalizes the use of knowing falsehoods in inflicting a “legally cognizable harm.” United States v. Alvarez, 567 U.S. 709, 719 (2012) (plurality opinion); Wasden, 878 F.3d at 1201. Appellant has not raised any challenges under the Stone Constitution. Additionally, she concedes that SAFTA does not discriminate by viewpoint, see R.A.V. v. St. Paul, 505 U.S. 377, 391-92 (1992), and raises no challenges under the Equal Protection Clause of the Fourteenth Amendment. U.S. Const. amend. XIV. Where speech is an element of a crime, courts scrutinize whether the First Amendment permits the relevant prohibition. See, e.g., Wasden, 878 F.3d at 1190. Courts have found such laws are impermissible content-based regulations of speech when they punish the use of misrepresentation to gain access to a facility. See id. at 1193-94; Animal Legal Def. Fund v. Reynolds (Reynolds II), 353 F. Supp. 3d 812, 823-24 (S.D. Iowa 2019); Animal Legal Def. Fund v. Herbert, 263 F. Supp. 3d 1193, 1213 (D. Utah 2017). Courts are divided, however, over the extent to which states can permissibly regulate speech in the context of applications for employment. Compare Wasden, 878 F.3d at 1201 (upholding regulation prohibiting obtaining employment by “misrepresentation with the intent to cause economic or other injury to the facility[]”), with Reynolds II, 353 F. Supp. 3d at 826 (invalidating regulation prohibiting the use of “a [knowing] false statement or representation as part of an application or agreement [of 5 employment] . . . with an intent to commit an act not authorized by the owner of the agricultural production facility, knowing that the act is not authorized.”). The current leading case on the scope of First Amendment protection for knowing misrepresentations is United States v. Alvarez, in which the Supreme Court struck down the Stolen Valor Act. 567 U.S. at 715 (plurality opinion). The four-justice plurality in Alvarez determined that the First Amendment applied to the Stolen Valor Act’s prohibition on misrepresentations about military awards, stating “that falsity alone may not suffice to bring [] speech outside the First Amendment.” Alvarez, 567 U.S. at 719. The plurality observed, however, that the First Amendment would not apply if the prohibited misrepresentation is “knowing or reckless” and is a component of a “legally cognizable harm,” as it is in a fraud or defamation case. Id. at 719, 723. Because the Stolen Valor Act did not criminalize speech as part of a legally cognizable harm, the plurality held that the Stolen Valor Act was a content-based restriction on speech subject to strict scrutiny. Id. at 724. Appellee concedes that SAFTA cannot survive strict scrutiny. In his concurrence, Justice Breyer stated that he would instead apply intermediate scrutiny, or “proportionality” review, to statutes prohibiting false statements. Alvarez, 567 U.S. at 730-31 (Breyer, J., concurring). Under this approach, courts (1) evaluate the “speech-related harm” the prohibition is likely to cause, (2) consider the “nature and importance” of the government’s objectives in adopting the prohibition, and (3) weigh “the extent to which the provision will tend to achieve those objectives” against “whether there are other, less restrictive ways of doing so.” United States v. Swisher, 811 F.3d 299, 308 (9th Cir. 2016) (quoting Alvarez, 567 U.S. at 730 (Breyer, J., concurring)). Additionally, in Justice Breyer’s view, the existence of a legally cognizable harm separate from the misrepresentation is just one consideration in 6 analyzing the likelihood of speech-related harm, rather than a precondition for the First Amendment to apply. Alvarez, 567 U.S. at 736 (Breyer, J., concurring). Finally, three dissenting justices found that “false statements of fact do not merit First Amendment protection for their own sake,” and that First Amendment protection only applies to false statements where it is necessary to give protected speech “breathing space.” Id. at 750 (Alito, J., dissenting) (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974)). In the dissent’s view, so long as a statement is “verifiably false and entirely lacking in intrinsic value” and “fails to serve any instrumental purpose that the First Amendment might protect,” the First Amendment does not apply. Id. at 752. Because no opinion in Alvarez enjoyed a five-justice majority, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Marks v. United States, 430 U.S. 188, 193 (1977) (plurality opinion) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)). No court has specifically addressed whether the plurality or concurrence in Alvarez is controlling; most courts have sidestepped the issue by applying both levels of scrutiny and reaching the same conclusion regardless. See, e.g., Swisher, 811 F.3d at 317 (“Given that the statute fails Justice Breyer’s intermediate scrutiny test, it also fails under the plurality’s exacting scrutiny test.”). The Supreme Court has never offered a method for determining what the “narrowest grounds” are, and circuits are divided in their approach. Compare King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc) (“Marks is workable—one opinion can be meaningfully regarded as ‘narrower’ than another—only when one opinion is a logical subset of other, broader opinions.”), with United States v. Johnson, 467 F.3d 56, 65-66 (1st Cir. 2006) (“[W]henever a 7 decision is fragmented such that no single opinion has the support of five Justices, lower courts should examine the plurality, concurring and dissenting opinions to extract the principles that a majority has embraced.”), and United States v. Cundiff, 555 F.3d 200, 209 (6th Cir. 2009) (finding that the narrowest opinion is “the concurring opinion that offers the least change to the law”). This is a question of first impression in this state. The majority of the Circuit Courts of Appeal hold that “Marks is workable—one opinion can be meaningfully regarded as ‘narrower’ than another—only when one opinion is a logical subset of other, broader opinions.” King, 950 F.2d at 781; see also United States v. Davis, 825 F.3d 1014, 1021-22 (9th Cir. 2016). Under this “reasoning-oriented” approach, see Davis, 825 F.3d at 1020, in cases where the Justices disagree in terms of kind rather than scope, the approach will fail to identify any rationale as binding. See King, 950 F.2d at 783. Under such circumstances, the Marks rule fails to produce a binding rationale, and lower courts are only bound by the result of the divided precedent. Id. at 784. The parties here agree that neither opinion is a logical subset of the other. Thus, if we follow the reasoning-oriented approach, we are only bound by Alvarez’s result. See King, 950 F.2d at 783. Because the facts of Alvarez are distinguishable from the facts here, we would be free to “consider [] which, if any, of the rationales in [Alvarez] is persuasive.” United States v. Epps, 707 F.3d 337, 351 (D.C. Cir. 2013). Due to the indeterminacy of this approach, neither party has advocated for it. Some other courts, and an occasional Supreme Court Justice, have employed a “resultsoriented” approach, in which a court must determine the controlling legal standard by “examin[ing] the plurality, concurring and dissenting opinions to extract the principles that a majority has embraced.” Johnson, 467 F.3d at 65-66; see, e.g., Rapanos v. United States, 547 U.S. 715, 810 (2006) (Stevens, J., dissenting). The results-oriented approach involves counting 8 the hypothetical votes of each Justice involved in the original case, including the dissenting justices, to determine whether a majority of justices would vote for a particular result under a given rationale, even if the Justices would not necessarily agree on the rationale itself. United States v. Duvall, 740 F.3d 604, 616 (D.C. Cir. 2013) (Kavanaugh, J., concurring in the denial of rehearing en banc) (“[I]n those rare no-narrowest-opinion cases, the lower court still must strive to reach the result that a majority of the Supreme Court would have reached . . . [by] run[ning] the facts and circumstances of the current case through the various tests articulated by the Supreme Court in the binding case.”). Thus, the controlling rationale may not be contained in a single opinion. The trial court adopted this approach and considered all three Alvarez opinions. It found that because Justice Alito’s dissent holds that the First Amendment does not apply to intentional, willful misrepresentations, the three dissenting justices would always vote to uphold a prohibition on lying as constitutional. Alvarez, 567 U.S. at 747 (Alito, J., dissenting). The plurality’s rationale would always uphold as constitutional a prohibition on a misrepresentation linked to a legally cognizable harm. Id. at 719 (plurality opinion). However, if the misrepresentation is not linked to a legally cognizable harm, and would therefore receive First Amendment protection, then Justice Breyer’s intermediate scrutiny analysis would be more likely to uphold that statute than the plurality’s strict scrutiny analysis. Alvarez, 567 U.S. at 724; id. at 730-31 (Breyer, J., concurring). Thus, the trial court first analyzed whether SAFTA prohibits speech made in the context of inflicting a legally cognizable harm. Alvarez, 567 U.S. at 719 (plurality opinion). The trial court held that it did not, and therefore SAFTA warranted First Amendment scrutiny–specifically Justice Breyer’s intermediate scrutiny. Id. at 730-31 (Breyer, J., concurring). The trial court found, however, that SAFTA withstood intermediate scrutiny. 9 We agree with the trial court that under the results-oriented Marks approach, this two-part analysis would be the controlling result of Alvarez. Furthermore, we agree with the trial court in its result: that SAFTA is a constitutionally valid statute. We disagree with the trial court’s reasoning in two respects, however. First, we adopt a different approach to Marks, and find that the Alvarez plurality opinion controls. Second, we find that SAFTA does prohibit speech made in the context of inflicting a legally cognizable harm; therefore, the First Amendment simply does not apply. Specifically, we reject the trial court’s results-oriented approach, because that approach contravenes the explicit rationale the Supreme Court put forth in Marks, which only permits a court to consider concurring justices’ opinions, and not dissenting justices’ opinions. 430 U.S. at 193. Instead, we adopt the Sixth Circuit’s approach to Marks, which falls between the reasoningand results-oriented approaches, by focusing on which opinion either (1) “offers the least change to the law” or (2) “fit[s] entirely within a broader circle drawn by the others.” Cundiff, 555 F.3d at 209. Here, as the parties agree that neither opinion is a logical subset of the other, we must determine whether the Alvarez plurality or Justice Breyer’s concurrence changed the law the least. Id. The plurality opinion determined that strict scrutiny applies because prohibitions on misrepresentations are content-based regulations that are not within a traditional category of unprotected speech. Alvarez, 567 U.S. at 715, 717-18 (plurality opinion). This has been the historical practice of the Court, see Ashcroft v. A.C.L.U., 542 U.S. 656, 660 (2004), and has continued since Alvarez. See, e.g., Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015). However, prior to Alvarez, the Supreme Court had repeatedly suggested that intentional lies receive no independent First Amendment protection. See BE&K Constr. Co. v. NLRB, 536 U.S. 10 516, 530-31 (2002) (“[F]alse statements may be unprotected for their own sake”); see generally Alvarez, 567 U.S. at 746-47 (Alito, J., dissenting) (citing cases). Justice Breyer’s concurrence notes that prohibitions on intentional lies have never merited “near-automatic condemnation” while suggesting that their “regulation can nonetheless threaten speech-related harms.” Id. at 731-32 (Breyer, J., concurring). Therefore, he applies intermediate scrutiny, which is the longstanding practice of the Court when confronting regulations that “do not pose such inherent dangers to free expression, or present such potential for censorship or manipulation, as to justify application of the most exacting level of First Amendment scrutiny.” Id. at 730-31; see Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641-652 (1994) (applying intermediate scrutiny). Appellant contends that applying strict scrutiny to a content-based restriction changes the law less than applying intermediate scrutiny, and that therefore, this Court should follow the plurality opinion. Appellee contends that because intentional lies have not historically received First Amendment protection, applying intermediate scrutiny is a smaller break from previous doctrine than applying strict scrutiny. We agree with Appellant that the plurality opinion represents the least change to existing law. SAFTA is, as Appellee concedes, a content-based restriction. Content-based restrictions are traditionally subject to strict scrutiny unless they fall within one of the historical categories of “unprotected speech.” Animal Legal Def. Fund v. Reynolds (Reynolds I), 297 F. Supp. 3d 901, 919 (citing United States v. Stevens, 559 U.S. 460, 469–70 (2010)). False statements are not one of those historical categories of unprotected speech. Id. at 919-20. Because the plurality, in keeping with longstanding Supreme Court precedent, holds that prohibitions on misrepresentations are content-based restrictions and applies strict scrutiny, the plurality opinion represents the least change to the law, and is therefore controlling. Alvarez, 567 U.S. at 722-23 (plurality opinion) (warning that courts do not 11 have “freewheeling authority to declare new categories of speech outside the scope of the First Amendment”). Having thus determined that the Alvarez plurality is the controlling opinion, we begin our inquiry by determining whether the speech SAFTA prohibits inflicts a legally cognizable harm. Alvarez, 567 U.S. at 719 (plurality opinion). SAFTA prohibits any knowing misrepresentation that is (1) material and (2) made to secure an offer of employment at an agricultural facility. Stone Rev. Stat. § 1-1366-2(1). The parties dispute whether these two elements constitute a legally cognizable harm and point us to two competing cases. In Wasden, the Ninth Circuit Court of Appeals examined an Idaho “ag-gag” law and held that misrepresentations made to gain access to property do not inflict a legally cognizable harm. 878 F.3d at 1195. Relying on Alvarez, however, the court also found that a separate prohibition on the use of material misrepresentations to gain employment constituted a legally cognizable harm. Id. at 1201 (“Where false claims are made to effect a fraud or secure moneys or other valuable considerations, say offers of employment, it is well established that the Government may restrict speech without affronting the First Amendment.” (quoting Alvarez, 567 U.S. at 723) (emphasis in original)). The court also noted that Idaho had further limited the scope of its prohibition by requiring that the misrepresentation be made with the specific intent of causing an economic injury. Id. In contrast, in Reynolds I, the District Court for the Southern District of Iowa found that misrepresentations made in an application for employment were not, on their own, sufficient to constitute a legally cognizable harm. 297 F. Supp. 3d at 924. In doing so, the court specifically rejected the government’s argument that “the reference in Alvarez to offers of employment means that the First Amendment allows for government prosecution of all misrepresentations 12 made to secure employment, whether material or not, and irrespective of any actual damage suffered by the employer.” Id. at 925. The court distinguished Wasden, observing that the Iowa statute lacked the Idaho statute’s materiality requirement and only required an actor’s intent to engage in an “unauthorized act,” rather than requiring proof of the actor’s intent to cause economic injury. Id. at 924-25 (quoting Iowa Code § 717A.3A(b) (2012)). SAFTA’s prohibition falls in a middle ground between the Idaho and Iowa prohibitions: Unlike Iowa’s prohibition, SAFTA only applies to material misrepresentations; however, SAFTA has no specific intent requirement. Compare Wasden, 878 F.3d at 1201, with Reynolds I, 297 F. Supp. 3d at 924-25. Under the Ninth Circuit’s approach in Wasden, SAFTA’s requirement that the misrepresentation be made in the context of an application for employment likely constitutes a legally cognizable harm. Wasden, 878 F.3d at 1201. However, under Reynolds I, the prospective employee must intend to cause the employer “actual damage” for the speech to inflict a legally cognizable harm, and SAFTA lacks an intent requirement. 297 F. Supp. 3d at 925. We agree with the Ninth Circuit and hold that a misrepresentation made in the context of an employment application is a legally cognizable harm, even absent an intent requirement. SAFTA’s materiality requirement requires that the employee’s lie be an essential condition of the benefit the employee received. See Restatement (Second) of Torts § 538(1) (Am. Law Inst. 1977) .Thus, the employer’s reliance on the lie constitutes a legally cognizable harm: commonlaw fraud. See Id. § 525. Common-law fraud does not require proof that the perpetrator intended to harm his victim. Id. Thus, speech made in the context of fraudulently gaining employment inflicts a legally cognizable harm regardless of the perpetrator’s intent. 13 Because we hold that the Alvarez plurality opinion controls our analysis, and because we further hold that SAFTA is not subject to First Amendment scrutiny, we need not review the trial court’s application of intermediate scrutiny. We note, however, that SAFTA is likely constitutional under intermediate scrutiny, because SAFTA is unlikely to cause any “speechrelated harm,” SAFTA seeks to achieve legitimate and important objectives and achieves those objectives better than a less restrictive alternative. See Swisher, 811 F.3d at 308 (quoting Alvarez, 567 U.S. at 730-31 (Breyer, J., concurring)). Thus, while we disagree with the trial court’s reasoning, we agree with its result. We hold that SAFTA is not subject to First Amendment scrutiny because it prohibits speech made in the context of a legally cognizable harm. For that reason, we AFFIRM the trial court’s decision denying Appellant’s motion to dismiss her indictment. 2. Motion to Suppress The trial court denied Appellant’s motion to suppress the evidence seized from a search of her encrypted hard drive. Although Appellant does not challenge the search itself under the Fourth Amendment, she contends that compelling her to enter her password violated her Fifth Amendment privilege against self-incrimination. Appellee concedes that if the act of inputting her password violated Appellant’s Fifth Amendment privilege, the evidence seized could not be properly admitted. Appellee also concedes that Appellant at no point waived her Fifth Amendment rights. The Fifth Amendment guarantees that “[n]o person shall . . . be compelled in any criminal case to be a witness against himself.” U.S. Const. amend V; see Malloy v. Hogan, 378 U.S. 1, 6 (1964). In a criminal trial, the defendant’s Fifth Amendment privilege against selfincrimination applies where the defendant shows (1) compulsion, (2) a testimonial 14 communication or act, and (3) incrimination. Fisher v. United States, 425 U.S. 391, 408 (1976). Appellee concedes that Appellant’s act—entering the password to decrypt her external hard drive—was both compelled and incriminating. Although the parties agree that entering a password is not a mere physical act, the parties disagree as to whether the act of entering the password was testimonial in this case. For an act to be testimonial, it must “explicitly or implicitly . . . relate a factual assertion or disclose information.” United States v. Apple MacPro Comput. (MacPro), 851 F.3d 238, 247 (3d Cir. 2017) (quoting Doe v. United States (Doe II), 487 U.S. 201, 210 (1988)), cert. denied sub nom. Doe v. United States, 138 S. Ct. 1988 (2018). Although certain kinds of physical evidence are non-testimonial, including procuring blood samples and handwriting exemplars, evidence that requires the use of the contents of the defendant’s mind is potentially testimonial. Doe II, 487 U.S. at 210 n.9 (1987) (distinguishing between “being forced to surrender a key to a strongbox containing incriminating documents” and “being compelled to reveal the combination to [a] wall safe”); see, e.g., Gilbert v. California, 388 U.S. 263, 265-67 (1967) (handwriting exemplar); Schmerber v. California, 384 U.S. 757, 763-64 (1966) (blood samples). The Supreme Court has not yet decided under what circumstances compelled password entry is testimonial. In absence of Supreme Court guidance, most lower courts have applied one of two variations of the act-of-production doctrine the Supreme Court established in Fisher. 425 U.S. at 410-11; see, e.g., MacPro, 851 F.3d at 247. Fisher holds that where the government seeks to subpoena pre-existing documents from a criminal defendant, the scope of Fifth Amendment protection only extends to the testimonial aspects of producing the documents. 425 U.S. at 410. Producing a document responsive to a subpoena (1) concedes that the document exists, (2) concedes that the defendant was in possession or control of the document, and (3) indicates that 15 the defendant believes that the document produced is the one described in the subpoena. Id. (citing Curcio v. United States, 354 U.S. 118, 125 (1957)). Although the act of producing a document may have one or more of these testimonial qualities, where the government can prove that all testimonial qualities of production are a “foregone conclusion” that “add[] little or nothing to the sum total of the Government's information,” producing the documents is nontestimonial and the privilege against self-incrimination does not apply. Id. at 411. Fisher established twin doctrines commonly known as the “act of production” and “foregone conclusion” doctrines. Under the act of production doctrine, if any of the three testimonial qualities of production are present, then the act of production is presumptively testimonial. Id. at 410. However, the foregone conclusion doctrine provides an exception: If the government can show that all testimonial qualities of the act of production are already known, then the act of production ceases to be testimonial, and the privilege against self-incrimination no longer applies. Id. at 411. Two Supreme Court cases have further elaborated on these doctrines: Doe II and United States v. Hubbell. Hubbell, 530 U.S. 27, 41-42 (2000); Doe II, 487 U.S. at 209-10. In Doe II, the government issued a subpoena requiring the defendant to sign consent decrees allowing the release of his financial information from several offshore bank accounts. 487 U.S. at 202-03. The consent decrees were worded generally and did not acknowledge that an account at any given bank existed. Id. at 215. Responding to the defendant’s assertion of Fifth Amendment privilege, the Court determined that signing the forms was non-testimonial, “because neither the form, nor its execution, communicates any factual assertions, implicit or explicit, or conveys any information to the Government.” Id. In contrast, in Hubbell, the defendant asserted Fifth Amendment privilege in response to a grand jury subpoena that requested eleven categories of 16 documents; the prosecution granted him immunity for the act of production. 530 U.S. at 31. The Court determined that production of the documents was testimonial because the categories requested were so broadly worded as to be the “functional equivalent of the preparation of an answer to either a detailed written interrogatory or a series of oral questions at a discovery deposition” in which the witness was required to “disclose the existence and location of particular documents.” Id. at 41-42. Additionally, the Court found that the foregone conclusion doctrine did not apply, because the government did not have “any prior knowledge of either the existence or the whereabouts of the 13,120 pages of documents ultimately produced by respondent.” Id. at 44-45. While Fisher, Doe II, and Hubbell were all decided prior to the widespread availability of encryption technology, courts and scholars applying the act-of-production and foregone conclusion doctrines have frequently made analogies to these three cases. See, e.g., Commonwealth v. Gelfgatt, 11 N.E.3d 605, 613-15 (Mass. 2014). Because of the imperfect fit in analogizing the production of documents to digital decryption, courts disagree on what exactly is being “produced” when the government compels a defendant to input their password, and therefore disagree over what the government has to prove it knows for the “foregone conclusion” doctrine to apply. Compare id., with In re Grand Jury Subpoena Duces Tecum (Grand Jury Subpoena), 670 F.3d 1335, 1348-49 (11th Cir. 2012). Appellant urges this Court to adopt the approach set forth by the Indiana Court of Appeals, which has found that requiring a defendant to enter the password to an encrypted device is like requiring the defendant to produce a decrypted copy of every document on the device. Seo v. State, 109 N.E.3d 418, 434 (Ind. App. 2018), transferred and vacated, 112 N.E.3d 1082 (Ind. 2018). Under this approach, for the foregone conclusion doctrine to apply, the government must 17 (1) prove that the defendant knows the password to the device, (2) describe, with “reasonable particularity,” the files it seeks, and (3) demonstrate that those files are on the device in question. Seo, 109 N.E.3d at 436 (citing Hubbell, 530 U.S. at 45). The Eleventh Circuit similarly requires the government to “show with some reasonable particularity that it seeks a certain file and is aware, based on other information, that (1) the file exists in some specified location, (2) the file is possessed by the target of the subpoena, and (3) the file is authentic.” Grand Jury Subpoena, 670 F.3d at 1349 n.28 (citing United States v. Norwood, 420 F.3d 888, 895–96 (8th Cir. 2005)). Appellee concedes that it could not allege with particularity the existence of specific files it sought, nor show that those files were on the hard drive it compelled Appellant to decrypt. Thus, Appellee concedes that if we adopt this approach, we must reverse the trial court’s decision denying Appellant’s motion to suppress. In arguing for this “underlying files” approach, Appellant contends that requiring the government to describe the underlying files it seeks with reasonable particularity best comports with Hubbell. See 530 U.S. at 45. She contends that there is no material difference between having a defendant input a password and having the defendant produce a decrypted copy of every file on the device; both require the same use of the “contents of [her] mind.” Id. at 45. She seeks to distinguish Doe II, arguing that digital decryption is distinguishable from signing a generally worded consent directive that authorizes the release of financial records. See 487 U.S. at 215. We disagree. Instead, we agree with Appellee and the trial court that the only testimonial quality of compelled decryption is that it communicates that the defendant knew the password to the relevant device. Commonwealth v. Jones, 117 N.E.3d 702, 711 n.10 (Mass. 2019). Where the government can show that the defendant knows the password to a device, which Appellant 18 concedes is the case here, the foregone conclusion doctrine applies, and the decryption is a nontestimonial action. See id. Contrary to Appellant’s assertion, simply unlocking a device does not force a defendant to “make extensive use of the contents of his own mind.” Hubbell, 530 U.S. at 43 (quoting Doe II, 487 U.S. at 210). We acknowledge Appellant’s concern that the “password-only” approach could allow the government to go on a fishing expedition on a defendant’s electronic devices, searching the entire contents of the decrypted device for evidence of any crime, not just the one giving rise to probable cause for the warrant. Cf. Hubbell, 530 U.S. at 42-43. We find this concern is sufficiently addressed, however, by the Fourth Amendment’s probable cause requirement. Cf. F.T.C. v. Amer. Tobacco Co., 264 U.S. 298, 306 (1924) (condemning as violative of “the spirit as well as the letter of the Fourth Amendment” the notion of Congress authorizing a “direct fishing expeditions into private papers on the possibility that they may disclose evidence of crime”). Were the files sought physical documents in a filing cabinet, the Fifth Amendment would not bar Appellee from searching that filing cabinet upon a showing of probable cause. Thus, we AFFIRM the decision of the trial court denying Appellant’s motion to suppress. For these reasons, Appellant Amanda Thompson’s conviction is UPHELD. Dated: June 12, 2019 19 APPENDIX A Stone Agricultural Facility Trespass Act Stone Revised Statutes §§ 1-1366-1 et seq. Stone Rev. Stat. § 1-1366-1. Statement of Purpose: We intend for the Stone Agricultural Facility Trespass Act to combat the widespread employment fraud currently devastating Stone’s agricultural industry. Companies simply do not have the resources or ability to conduct in-depth background investigations into every entry-level employee they hire. As such, many companies have unwittingly hired people who outright lied about their qualifications or backgrounds. In some cases, the employee is manifestly unqualified for their job, potentially endangering all the other workers through negligent operation of heavy equipment. In other cases, the employee actively intends to hurt the company that hires them, sometimes leading to billions of dollars of losses for the company and millions of dollars in lost tax revenue for Stone. Stone Rev. Stat. § 1-1366-2. (1) It shall be a Class C Felony (as defined in section 1-1332-3(2)(c)) for any person to knowingly make a false statement of material fact in an application for employment at an agricultural production facility. (2) Definitions: (a) “Agricultural production facility” means any structure or land, whether privately or publicly owned, leased or operated, that is being used for agricultural production. (b) “Agricultural production” means activities associated with the production of agricultural products for food, fiber, fuel and other lawful uses and includes without limitation: (i) Planting, irrigating, growing, fertilizing, harvesting or producing agricultural, horticultural, floricultural and viticultural crops, fruits and vegetable products, field grains, seeds, hay, sod and nursery stock, and other plants, plant products, plant byproducts, plant waste and plant compost; (ii) Breeding, hatching, raising, producing, feeding and keeping livestock, dairy animals, swine, furbearing animals, poultry, eggs, fish and other aquatic species, and other animals, animal products and animal byproducts, animal waste, animal compost, and bees, bee products and bee byproducts; and (iii) Processing and packaging agricultural products, including the processing and packaging of agricultural products into food and other agricultural commodities.