Does the Fifth Amendment Protect Suspects From Decrypting Their Files?

The Citizen's Guide to the Future
March 5 2012 12:38 PM

Does the Fifth Amendment Protect Suspects From Decrypting Their Files?

Today on Future Tense, John Villasenor raises a fascinating question: How does the Fifth Amendment right against self-incrimination apply when a tech-savvy suspect has encrypted his potentially incriminating files? Can the government compel him to decrypt? Villasenor looks at several recent and current cases involving just this question and calls on the Supreme Court to take up the question soon. The problem, he writes, is complicated:

In the pre-digital age, there was a distinct boundary between the information that resided only in our minds and the information that we committed to paper. The former was afforded strong constitutional protection; the latter, much less so. But modern encryption blurs that boundary by enabling the storage of essentially infinite amounts of information that can be unlocked only by passwords stored in our minds. (If only all criminals hid Post-Its with their passwords under their keyboards.) Put another way, encryption creates the possibility that our digital data and devices will be viewed, in the legal sense, as extensions of ourselves.
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Future Tense is a partnership of SlateNew America, and Arizona State University.

Torie Bosch is the editor of Future Tense, a project of Slate, the New America Foundation, and Arizona State that looks at the implications of new technologies. 

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