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

Massachusetts Supreme Judicial Court, No. SJC-12564

USC Law Legal Studies Paper No. 18-29

25 Pages Posted: 3 Nov 2018

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). Massachusetts Supreme Judicial Court, No. SJC-12564, USC Law Legal Studies Paper No. 18-29, Available at SSRN: https://ssrn.com/abstract=3264866

Orin S. Kerr (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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