Thursday, November 14, 2013
Dan Terzian has posted Rethinking the Fifth Amendment and Encryption: A Call to Consider Constitutional Values on SSRN. Here is the abstract:
This essay considers whether the Fifth Amendment’s Self-Incrimination Clause bars the government from compelling the production of passwords or unencrypted data. In particular, it focuses on one aspect of the amendment that has been largely ignored: the Fifth Amendment’s aim to achieve a fair balance between the state’s interest and the individual’s. With encryption, achieving this fair balance requires permitting the compelled production of passwords or unencrypted data. Correspondingly, this need to achieve a fair balance should guide courts in their interpretation of Supreme Court doctrine, leading them to favor the interpretation permitting compulsion.