Locked Out or Locked Up: The Need for New Guidelines for Compelled Decryption.

AuthorChristianson, Adriana

"As encryption spreads to all digital information, whether communications over the internet or data at rest on our devices, passwords will play an increasingly critical role in protecting our data, but it will also present an increasing obstacle to legitimate law enforcement needs." (1)

  1. Introduction

    The Founders of the United States were deeply concerned with government overreach into the private lives and property of citizens. (2) Witness to troubling evidence-gathering practices, the Founding Fathers conceived two strong protections against such overreach: the prohibition against unreasonable search and seizure in the Fourth Amendment, and the prohibition against self-incrimination in the Fifth Amendment. (3) Both amendments have been the subject of much litigation as courts struggle to define the boundaries of the amendments' limits on government action and keep pace with ever-changing technology and perceptions of privacy. (4)

    The explosion of personal technology in the twenty-first century has highlighted the relationship between the two amendments as modern society migrates intimate information onto digital devices. (5) Cell phones and computers have become ubiquitous, with over 97% of the U.S. population owning a cell phone and 77% owning a desktop or laptop computer. (6) Police are frequently interested in searching digital devices for evidence of wrongdoing because of their popularity and the private nature of their contents, but must do so without violating either amendment. (7)

    The physical size of these devices belies the vast amounts of information contained within, and guidelines defining a reasonable search do not always apply to devices' contents. (8) Often listed as one item on a warrant, a device may hold terabytes of information in the form of videos, pictures, applications, activity logs, emails, messages, calendars, search history, and location data. (9) Although citizens have fought countless court battles over how readily and expansively law enforcement may search individuals' private spaces--and even public spaces where people reasonably expect privacy--expansive searches of digital devices are now the norm. (10) Courts have recently begun to recognize that digital devices are more than just physical objects, but practices and procedures still lag behind; police are generally able to search an entire device with impunity as long as they have secured a search warrant. (11)

    Encryption is a way to scramble information so that only authorized recipients can unscramble it. (12) Device users increasingly rely on encryption to maintain privacy, making it difficult for law enforcement to search encrypted information without compelling suspects to disclose the password or remove encryption protections. (13) Encryption is critically important to modern financial, medical, and business industries, which rely on advanced encryption to send and receive data securely. (14) There are also many personal benefits of encryption, from securing intimate conversations and family photos to keeping prying eyes out of one's search history. (15) But while encryption makes it safe to send a credit card number to a vendor over the internet, it can also make it very difficult for a detective to investigate and subsequently prove criminal activity. (16)

    Investigators have increasingly turned to the courts to compel suspects to decrypt their own devices when investigators believe evidence exists on an encrypted device but cannot access it, and some courts have been more willing than others to oblige. (17) Whether courts will support an order to compel depends on their application of decades-old case law--developed for paper documents--to encrypted data on digital devices. (18) But an encrypted digital device is not a document. (19) Unsurprisingly, a doctrine based on paper documents does not apply cleanly to the encrypted contents of a digital device, and confusion abounds when analogizing the two. (20)

    Without coherent, thoughtful judicial direction, the danger is that courts will further erode the constitutional rights not to be a witness against oneself and to be free from unreasonable search and seizure. (21) New guidelines are necessary to establish and clarify the government's power to compel citizens to aid in their own incrimination by disclosing the contents of their minds. (22) Between the interests of law enforcement in a digital age, national reliance on safe and private data, and our cherished liberties and constitutional rights, too much hangs in the balance to risk getting it wrong. (23)

    This Note evaluates the current compelled decryption doctrine. (24) This Note examines the origins of the Fifth Amendment's act-of-production doctrine, its primary exception, the foregone conclusion doctrine, and their application to compelled decryption. (25) This Note also summarizes the Fourth Amendment's particularity requirement and the challenges it poses to compelled decryption. (26) This Note provides an overview of court decisions that highlight the split regarding the application of the doctrines to compelled decryption. (27) Then, this Note analyzes the shortcomings of the existing self-incrimination doctrine in the case of digital devices and argues that the contents of devices are testimonial communications, as is the compelled act of decrypting them. (28) Finally, this Note identifies alternatives to compelled decryption, whereby law enforcement can acquire the evidence they need through means less violative of constitutional protections. (29)

  2. History

    1. The Fifth Amendment Right Against Self-Incrimination

      Within the U.S. Constitution's Fifth Amendment, the Self-Incrimination Clause enshrines citizens' inherent freedom from being forced to bear witness against themselves. (30) The Self-Incrimination Clause originated from English common law, where it served as a broad principle against forced testimony that would bring legal peril, infamy, or even disgrace to the witness. (31) The initial concept of the now-familiar right against self-incrimination was to forbid the government from forcing the self-production of adverse evidence. (32) Early state bills of rights first used the language of being a witness against oneself, which was elevated to a constitutional right when the Fifth Amendment was adopted in 1791. (33) Today, a violation of the Self-Incrimination Clause requires elements of compulsion, incrimination, and testimony--the last of which has been the source of abundant litigation. (34)

      Commonly considered the Supreme Court's first tango with the privilege against self-incrimination, Boyd v. United States outlined the broad initial boundaries of the Self-Incrimination Clause. (35) In 1884, a New York District Attorney charged Boyd with fraudulently importing plate glass without paying the required taxes. (36) Using a court order authorized by federal statute, the District Attorney compelled Boyd to produce the invoice for the glass, believing the invoice would prove the fraud. (37) Boyd claimed the law that authorized this type of order was unconstitutional because the government could not lawfully compel evidence from a defendant. (38)

      The Court agreed, calling the compelled production an unreasonable search and seizure under the Fourth Amendment. (39) The Court reasoned that the compelled production had the same effect and purpose as a search and seizure, and it was unreasonable because it went further than the writs of assistance. (40) Justice Bradley, writing for the majority, then stretched his reasoning to conclude that the compelled production also violated the Fifth Amendment, holding "a compulsory production of the private books and papers of the owner ... is compelling him to be a witness against himself, within the meaning of the Fifth Amendment of the Constitution." (41) With this proclamation, the Court cemented the notion that the government could neither seize private books and papers under the Fourth Amendment nor compel them under the Fifth Amendment. (42) Over the next century, however, the Court struggled with Justice Bradley's conflation of the two amendments; the Court eventually teased them apart again by distinguishing between testimonial evidence that the Fifth Amendment protects and other types of more physical evidence that the Fourth Amendment protects. (43)

      1. The Act-of-Production Doctrine

        One hundred years after Boyd, in Fisher v. United States, the Court repudiated Boyd's analysis and introduced a new framework with which to consider the compelled production of documents: the act-of-production doctrine. (44) Fisher was under IRS investigation for tax liability when the government subpoenaed an income and expense report that his accountant had prepared. (45) Claiming the documents were privileged under the Fourth and Fifth Amendments, Fisher's attorney declined to comply with the summons. (46)

        The Fisher Court held that the right against self-incrimination does not protect physical contents of already existing and possibly incriminating documents because their creation was voluntary--the government did not compel their creation. (47) Furthermore, Fisher neither created the papers in question nor made testimonial declarations in them. (48) Nevertheless, the Court reasoned that while the contents were not testimonial and thus not protected by the Fifth Amendment, the act of producing them required a separate analysis. (49) Specifically, the Court held that Fisher's act of production implicitly communicated to the government that the papers existed, they were in Fisher's control, and he believed they were the documents sought. (50) The Court then had to address whether these implicit communications were testimonial. (51)

      2. The Foregone Conclusion Exception

        The Fisher Court defined a new exception to what is considered testimonial, holding that because the government already knew the communication implied by the act, the act itself added nothing to the...

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