Passwords, Profiles, and the Privilege Against Self-Incrimination: Facebook and the Fifth Amendment
28 Pages Posted: 17 Feb 2012 Last revised: 13 Mar 2014
Date Written: February 15, 2012
While Facebook has become ubiquitous in most people’s lives, it is also making increasingly frequent appearances in criminal cases. In the past few years, Facebook has emerged as a fertile source of incriminating information from boastful or careless defendants who find in Facebook a great way to project their outlaw persona to the world.
But does the Fifth Amendment privilege against self-incrimination shield someone who has posted incriminating information on his Facebook page from being forced to disclose his password or provide access to his profile? While in most cases, Facebook information is public, in rare situations, a law enforcement officer might find herself in the peculiar position of believing that incriminating information is posted on a Facebook page, but having no way to get to it without the suspect’s cooperation.
In these circumstances, the government would have to subpoena the suspect for his Facebook content or his password, and may have to compel compliance by offering immunity for the act of producing the information. What is not clear is whether the immunized communication implied in the act of turning over Facebook content or passwords — confirming the existence of the account, the defendant’s control over it, and its authenticity — would then taint the Facebook information itself, rendering the government unable to use it.
While these situations are only likely to arise in a relatively narrow class of cases, the application of unsettled Fifth Amendment doctrine to novel technological issues raises complex questions. This paper, part of the Arkansas Law Review’s Symposium on Facebook and the Law, will attempt to provide a guide through this uncharted landscape. After reviewing Facebook’s growing prominence in criminal cases and the tangled Fifth Amendment jurisprudence that governs subpoenas for documents, I conclude that, where the government does not have enough information to obtain Facebook information from the company itself, a suspect's Facebook profile may be effectively beyond government reach. In the final section of the paper, I consider whether this level of protectiveness is normatively desirable or whether it will simply create an incentive for greater government intrusions.
Keywords: Facebook, Fifth Amendment, Privilege Against Self-Incrimination, Encryption, Social Media, Criminal Investigations
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