Unlocking the Fifth Amendment: Passwords and Encrypted Devices

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

Note: Conflicting Common Law: Application of the Self-Incrimination Clause as Applied to Smartphone Technology

This essay discusses the murkiness in the law regarding the application of the Self-Incrimination Clause as it relates to modern technology of smartphones. It evaluates the pros and cons of a judicial solution to the existing conflict against a legislative solution. Rather than through regulation or statutory reform, the focus will be on the need for a contemporary judicial interpretation of the Self-Incrimination Clause in furtherance of the common law tradition that spawned the first understandings of the Fifth Amendment. Ultimately, this examination will call upon the Supreme Court to craft a modern application of the Self-Incrimination Clause by holding that the foregone conclusion rule should not apply merely to unlocking a person’s smartphone, and that the particularity requirement of search warrants should include with specificity which applications and what information law enforcement is seeking

Face Off: Overcoming the Fifth Amendment Conflict Between Cybersecurity and Self-Incrimination

The Founders included the privilege against self-incrimination in the Constitution to protect individual privacy and ensure a fair judicial process. Courts have failed U.S. citizens by neglecting to protect them from compelled unlocking of biometrically encrypted devices. This inaction has created a loophole that contradicts the framework of the privilege against self-incrimination. To correct this mistake courts should reconsider the trend they have set for the Constitution and the Fifth Amendment and consider adopting a forward-thinking cybersecurity lens to conclude that biometric authentication is testimonial. Courts should consider that biometric encryption is akin to a compelled password entry for the purposes of the foregone conclusion doctrine. The foregone conclusion doctrine should be applied in limited circumstances with a specific and high burden of proof so that the jealous protection of the privilege against self-incriminating testimony can be preserved. Allowing law enforcement such easy access to smart devices narrows Fifth Amendment protections and the expansive foregone conclusion exception is contrary to both principles of cybersecurity and the spirit of the Fifth Amendment. Courts should move to remediate this at once. These liberties and values can only be guaranteed by courts that are willing to take on cases with issues revolving around biometric encryption, the Fifth Amendment, and the foregone conclusion doctrine

Privacy, Screened Out: Analyzing the Threat to Individual Privacy Rights and Fifth Amendment Protections in \u3cem\u3eState v. Stahl\u3c/em\u3e

Courts across the United States have applied Fifth Amendment protections to passcodes, as long as those passcodes are not a foregone conclusion. In order for a court to determine that a passcode is a forgone conclusion, and thus not testimonial in nature, the prosecution must show that they knew the existence, possession, and authenticity of the evidence that would be discovered by the compelled passcode, before the passcode is compelled. The foregone conclusion doctrine was established, and had been used, to balance the need of law enforcement to gather incriminating evidence while still protecting defendants’ Fifth Amendment rights. In 2016, the Florida Second Court of Appeals took the forgone conclusion doctrine to an extreme in State v. Stahl, by expanding the foregone conclusion doctrine and finding that evidence must be significantly testimonial in order for it to be protected by the Fifth Amendment. If other courts follow the Stahl decision, it would mean the end of the balance that the foregone conclusion has provided as well as all Fifth Amendment protections to encryption