Publication Date

1-1-2019

Document Type

Article

Organizational Units

Sturm College of Law

Keywords

Fifth Amendment, self-incrimination, encryption, criminal procedure, subpoenas, act of production, foregone conclusion

Abstract

In his forthcoming article in the Texas Law Review, Compelled Decryption and the Privilege Against Self-Incrimination, Orin S. Kerr addresses a common question confronting courts. If a court orders a suspect or defendant to enter her password to open a smartphone or other device as part of a law enforcement investigation, does that order violate the Fifth Amendment right against self-incrimination?

To answer this question, Kerr appropriately looks by analogy to existing Fifth Amendment case law as applied to document subpoenas, the “act of production” doctrine, and its mysterious cousin, the “foregone conclusion” doctrine. From these materials, he gleans a simple rule: if the government can independently show the person knows the password to the device, it may compel her to enter her password to open it.

But when we consider the analogy to the act of production cases closely, and match like to like, we really should arrive at a rule different from Kerr’s. The rule should be whether the government already knows the person possesses the files on the device and can identify them with reasonable particularity.

The difficulty, the debate, and the growing court split all arise because the act of production doctrine rests upon a faulty premise. Courts and some scholars including Kerr rarely discuss this flaw, and how it infects the entire act-of-production enterprise. This response shows how we must address this flaw before applying the act of production doctrine to the new situation of passwords.

Copyright Statement / License for Reuse

Creative Commons Attribution 4.0 International License
This work is licensed under a Creative Commons Attribution 4.0 International License.

Rights Holder

Laurent Sacharoff

Provenance

Received from author

File Format

application/pdf

Language

English (eng)

Extent

10 pgs

File Size

185 KB

Publication Statement

Copyright held by the author. User is responsible for all copyright compliance.

Originally published as Laurent Sacharoff, What Am I Really Saying When I Open My Smartphone: A Response to Prof. Kerr, 97 Tex. L. Rev. Online 63 (2019).

Publication Title

Texas Law Review

Volume

97

First Page

63

Last Page

72

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