Compelled Decryption and the Privilege Against Self-Incrimination

This Essay considers the Fifth Amendment barrier to orders compelling a suspect to enter in a password to decrypt a locked phone, computer, or file. It argues that a simple rule should apply: an assertion of privilege should he sustained unless the government can independently show that the suspect...

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Bibliographic Details
Published in:Texas law review 2019-03, Vol.97 (4), p.767-799
Main Author: Kerr, Orin S
Format: Article
Language:English
Subjects:
Balance of power
Compliance
Criminal investigations
Criminal procedure
Cybercrime
Evidence
Law
Self incrimination
Supreme Court decisions
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Summary:This Essay considers the Fifth Amendment barrier to orders compelling a suspect to enter in a password to decrypt a locked phone, computer, or file. It argues that a simple rule should apply: an assertion of privilege should he sustained unless the government can independently show that the suspect knows the password. The act of entering a password is testimonial, hut the only implied statement is that the suspect knows the password. When the government can prove this fact independently, the assertion is a foregone conclusion and the Fifth Amendment poses no har to the enforcement of the order. This rule is both doctrinally correct and sensible policy. It properly reflects the distribution of government power in a digital age when nearly everyone is carrying a device that comes with an extraordinarily powerful lock.
ISSN:0040-4411
1942-857X