By: Kirstyn Watson*
Abstract
Modern encryption’s strength has correlated with its exponential demand to the point that law enforcement cannot decrypt most devices. This level of encryption can leave law enforcement with no practical means of searching a device despite being legally entitled to do so. This issue, dubbed warrant-proof encryption, becomes especially troublesome when safeguarding national security interests or when the investigation of society’s most egregious crimes demands that law enforcement officers obtain access to a device’s contents. To combat this issue, law enforcement has turned to the court system to compel criminal defendants to unlock their encrypted devices. However, some defendants have argued that this compulsion violates their Fifth Amendment privilege against self-incrimination.
The Fifth Amendment privilege against self-incrimination protects individuals from being compelled by a court to act as a witness against themselves in criminal matters. However, this protection applies only to incriminating testimonial communications. Many courts disagree as to whether defendants’ compelled password disclosures or compelled decryption constitutes incriminating testimonial communications that trigger Fifth Amendment protections.
State and federal courts differ in their views of the testimonial nature of passwords and in applying the foregone conclusion exception to compel defendants to disclose their passwords to encrypted devices. Additionally, split decisions over the testimonial nature of compelled password disclosures have fostered further divide regarding the compelled use of biometrics to decrypt devices. Because the United States Supreme Court has not yet directly addressed this issue, this Comment advocates for a uniform rule of law. Ultimately, compelled decryption and biometric security bypasses should not be interpreted as testimonial communications when the foregone conclusion exception applies, therefore exempting them from Fifth Amendment protections.
*J.D. Candidate, The Pennsylvania State University, Penn State Law, 2022