Encryption, once the domain of intelligence operatives, is now ubiquitous. Nearly every personal electronic device can now be encrypted with ciphers unbreakable by the most technologically advanced governments. This trend poses particular challenges to criminal investigations, such as when evidence is located on a suspect’s encrypted smartphone. So what about compelling the suspect to decrypt? The Fifth Amendment states that no person "shall be compelled in any criminal case to be a witness against himself[.]" The Supreme Court's act of production doctrine says that certain compelled productions are a testimonial, and therefore cannot be used to incriminate the producer. However, the foregone conclusion doctrine allows compelled production when the information to be produced is already known to the government. Precisely how these doctrines apply to compelled decryption has yet to be settled. Federal appeals courts have expressed their opinions, and state supreme courts are considering the issue as well. This teleforum features two law professors who have debated the issue in academic publications and as amici.
Featuring:
Prof. Orin Kerr, University of California, Berkeley School of Law
Prof. Laurent Sacharoff, Associate Professor of Law, University of Arkansas, Fayetteville