At a DPS academy where I teach Constitutional Law, I ask recruits if a defendant can be compelled to provide any/all of the following — even if such evidence might be incriminating — or if the Fifth Amendment protects them from having to do so.
• Hair
• Blood
• Saliva
• Appear in a line up
• Writing sample
• Voice exemplar
Answer: None of the above is protected by the Fifth Amendment. The next question is whether or not the Fifth Amendment protects a person’s encrypted computer files, and I believe this question is bound to land before the Supreme Court.
Keys and Combinations
Unlike Miranda — which advises suspects they have a right not to incriminate themselves — the Fifth Amendment’s protection is more narrowly written:
Nor shall any person be … compelled in any criminal case to be a witness against himself … [.]
Courts have consistently held that the Fifth Amendment does not prohibit compelling suspects to provide any of the evidence listed above because it is neither communicative nor testimonial in nature (Schmerber v. California, 384 U.S. 757 (1966).
Courts have also agreed the Fifth Amendment does protect against compelling suspects to give statements to the police or to testify in a criminal case against them.
Applying this construct, the Supreme Court has found the Fifth Amendment does not protect against compelling a suspect to provide a key to lockbox because the key is a physical thing.
It does, however, protect against having to provide a safe combination because that is the “expression of the contents of an individual’s mind” (Doe v. U.S (1988), f.n.9.
If we analogize computer files to documents, case law also establishes that if a person voluntarily creates and possesses incriminating documents, he or she may nevertheless have to produce them in response to a subpoena or search warrant. That’s because the creation of such documents is not “compelled” (Fisher v. United States, 425 U.S. 391, 409-410 (1976).
However, the act of producing documents may compel a person to implicitly admit that certain papers exist, are in that person’s possession or control, and are authentic. In such circumstances, the production of documents communicates a lot more and, if compelled, may be privileged under the Fifth Amendment if likely to be incriminating.
Accordingly, in United States v. Hubbell, 530 U.S. 27, 36-37 (2000) the Supreme Court held the Fifth Amendment protected a witness from being compelled to disclose the existence of incriminating documents which the Government was unable to describe with “reasonable particularity” because such disclosure was, in effect, a statement the documents existed and where.
Whether the act of production has a communicative aspect sufficient to elicit Fifth Amendment protection is a fact-intensive inquiry (Fisher, 425 U.S. at 410). Producing documents is more likely to be a privileged act when a subpoena contains broad categories of documents, because responding is “tantamount to answering a series of interrogatories asking a witness to disclose the existence and location of particular documents fitting certain broad descriptions.” (Hubbell, 530 U.S. at 41-42.)
Encryption Technology
Encrypting data transforms it into a coded form that makes it unreadable to anyone but the author and the intended recipient of the document. Much of the software used in offices and on personal computers has encryption functionality built in.
Most forms of encryption require you to set a password, which allows you to encrypt the file and to decrypt it later on when you want to view it again. Encryption software is freely available and easy to use. Assuming the existence of a strong password, cracking encryption is not realistically possible.
The no-man’s land created by technology is whether compelled decryption is akin to:
a) The production of documents (may be privileged)
b) The production of a safe combination (privileged)
c) The production of a key to a lock box (not privileged)
d) Or something altogether different
Applying the safe-combination / lockbox-key dichotomy might mean that a fingerprint which unlocks an iPhone could be compelled, but a numeric passcode could not.
Courts deciding whether decryption can be compelled often rely on the safe-combination / lockbox-key dichotomy.
The storm brewing is that they’ve come to opposite conclusions.
Decryption orders — once rare — are likely to become more commonplace as the public welcomes a technology that comes standard on computers and smart phones. With the National Association of Defense Lawyers marshaling its troops to defend against law enforcement’s attempts to obtain such information and the ACLU and Electronic Frontier Foundation filing amicus briefs in pending cases, things are definitely heating up.
Because of the disagreement amongst lower courts, the importance of this issue to law enforcement, and its increasing occurrence, I predict this issue is headed to The Supreme Court.
