The Fifth Amendment, Encryption, and the Forgotten State Interest

15 Pages Posted: 7 Nov 2013 Last revised: 1 Mar 2014

Date Written: November 6, 2013

Abstract

This essay considers how the Fifth Amendment’s Self-Incrimination Clause applies to encrypted data and computer passwords. In particular, it focuses on one aspect of the amendment that has been largely ignored: its aim to achieve a fair balance between the state’s interest and the individual’s. This aim has often guided courts in defining the the Self-Incrimination Clause's scope, and it should continue to do so here. With encryption, achieving a fair balance requires permitting the compelled production of an encrypted hard drive’s password or its decrypted data in order to give state interests, like prosecution, an even chance. Courts should therefore interpret Fifth Amendment doctrine in a manner permitting this compulsion.

Keywords: Fifth Amendment, self-incrimination clause, encryption, passwords, constitution, technology

Suggested Citation

Terzian, Dan, The Fifth Amendment, Encryption, and the Forgotten State Interest (November 6, 2013). 61 UCLA Law Review Discourse 298 (2014), Available at SSRN: https://ssrn.com/abstract=2350669 or http://dx.doi.org/10.2139/ssrn.2350669

Dan Terzian (Contact Author)

Duane Morris LLP ( email )

United States

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