What Am I Really Saying When I Open My Smartphone?: A Response to Professor Kerr
12 Pages Posted: 12 Feb 2019
Date Written: February 1, 2019
In his forthcoming article in the Texas Law Review, Compelled Decryption and the Privilege Against Self-Incrimination, Orin S. Kerr addresses a common question confronting courts. If a court orders a suspect or defendant to enter her password to open a smartphone or other device as part of a law enforcement investigation, does that order violate the Fifth Amendment right against self-incrimination?
To answer this question, Kerr appropriately looks by analogy to existing Fifth Amendment case law as applied to document subpoenas, the “act of production” doctrine, and its mysterious cousin, the “foregone conclusion” doctrine. From these materials, he gleans a simple rule: if the government can independently show the person knows the password to the device, it may compel her to enter her password to open it.
But when we consider the analogy to the act of production cases closely, and match like to like, we really should arrive at a rule different from Kerr’s. The rule should be whether the government already knows the person possesses the files on the device and can identify them with reasonable particularity.
The difficulty, the debate, and the growing court split all arise because the act of production doctrine rests upon a faulty premise. Courts and some scholars including Kerr rarely discuss this flaw, and how it infects the entire act-of-production enterprise. This response shows how we must address this flaw before applying the act of production doctrine to the new situation of passwords.
Keywords: Fifth Amendment, self-incrimination, encryption, criminal procedure, subpoenas, act of production, foregone conclusion
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