Amicus Brief of Professor Orin Kerr on Standards for Compelled Decryption Under the Fifth Amendment
Massachusetts Supreme Judicial Court, No. SJC-12564
25 Pages Posted: 3 Nov 2018
Date Written: October 11, 2018
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: Suggested Citation