Friday, July 11, 2014
This Essay considers whether the government can force a person to decrypt her computer. The only courts considering the issue limited their analyses to rote application of pre-digital doctrine and dicta. This is a mistake; they should instead seek to maintain the ex ante equilibrium of privacy and government power. This approach was just signaled appropriate by the Supreme Court in Riley v. California, a recent Fourth Amendment case. Riley’s rationale extends to the Fifth Amendment’s Self-Incrimination Clause, and maintaining equilibrium requires permitting forced decryption. Because current doctrine can be interpreted in a way that finds forced decryption constitutional, courts should therefore adopt that interpretation.