CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, July 11, 2014

Terzian on Forced Decryption Equilibrium

Dan Terzian has posted Forced Decryption Equilibrium on SSRN. Here is the abstract:

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.

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