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

See all articles by Orin S. Kerr

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). 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)

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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