Amicus Brief of Professor Orin Kerr on Standards for Compelled Decryption Under the Fifth Amendment

USC Law Legal Studies Paper No. 18-29

Massachusetts Supreme Judicial Court, No. SJC-12564

25 Pages Posted:  

Orin S. Kerr

University of Southern California Gould School of Law

Date Written: October 11, 2018

Abstract

In Commonwealth v. Jones, No. SJC-12564, the Massachusetts Supreme Judicial Court will become the first state supreme court or federal circuit to identify the government's burden of proof for establishing a "foregone conclusion" that permits compelled decryption under the Fifth Amendment privilege against self-incrimination. Professor Kerr's amicus brief argues that the government's burden should be to prove by clear and convincing evidence, based on a totality of the circumstances, that the subject of the order knows the password.

Keywords: Fifth Amendment, encryption, self-incrimination, decryption

JEL Classification: K1, k14, k42

Suggested Citation

Kerr, Orin S., Amicus Brief of Professor Orin Kerr on Standards for Compelled Decryption Under the Fifth Amendment (October 11, 2018). USC Law Legal Studies Paper No. 18-29. Available at SSRN: https://ssrn.com/abstract=

Orin S. Kerr (Contact Author)

University of Southern California Gould School of Law ( email )

699 Exposition Boulevard
Los Angeles, CA 90089
United States

HOME PAGE: http://gould.usc.edu/faculty/?id=73523

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