Publication Date

1-1-2018

Document Type

Article

Organizational Units

Sturm College of Law

Keywords

Fifth Amendment, Compelled disclosure, Warrants, Search and seizure, Fourth Amendment, Criminal law, Criminal procedure, encryption, smartphone

Abstract

Each year, law enforcement seizes thousands of electronic devices — smartphones, laptops, and notebooks — that it cannot open without the suspect’s password. Without this password, the information on the device sits completely scrambled behind a wall of encryption. Sometimes agents will be able to obtain the information by hacking, discovering copies of data on the cloud, or obtaining the password voluntarily from the suspects themselves. But when they cannot, may the government compel suspects to disclose or enter their password?

This Article considers the Fifth Amendment protection against compelled disclosures of passwords — a question that has split and confused courts. It measures this right against the legal right of law enforcement, armed with a warrant, to search the device that it has validly seized. Encryption cases present the unique hybrid scenario that link and entangle the Fourth and Fifth Amendments. In a sense, this Article explores whose rights should prevail.

This Article proposes a novel settlement that draws upon the best aspects of Fourth and Fifth Amendment law: the government can compel a suspect to decrypt only those files it already knows she possesses. This rule follows from existing Fifth Amendment case law and, as a corollary to the fundamental nature of strong encryption, also represents the best accommodation of law enforcement needs against individual privacy.

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

49 pgs

File Size

455 KB

Publication Statement

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

Originally published as Laurent Sacharoff, Unlocking the Fifth Amendment: Passwords and Encrypted Devices, 87 Fordham L. Rev. 203 (2018).

Publication Title

Fordham Law Review

Volume

87

First Page

203

Last Page

251

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