Monday, April 29, 2019
David Rangaviz (Committee for Public Counsel Services) has posted Compelled Decryption & State Constitutional Protection Against Self-Incrimination (American Criminal Law Review, Vol. 57, No. 1 (2019, Forthcoming)) on SSRN. Here is the abstract:
This article engages in a detailed discussion of state constitutional privileges against self-incrimination, and argues that these provisions should be rigorously analyzed when the government seeks to compel a suspect to enter a passcode to an encrypted device. Searches of cell phones are highly intrusive, and the subject of considerable public interest among both lay people and legal scholars. Today, there is much emerging scholarship on the subject of how the Fifth Amendment to the Federal constitution applies to compelled decryption, but none about state constitutional law. This article fully examines how state constitutional protections differ from the Fifth Amendment, and describes how those provisions should be read to provide additional protection against compelled decryption.
This article focuses most specifically on the Massachusetts state constitution because the Supreme Judicial Court recently became the first state supreme court to address the subject of compelled decryption in Commonwealth v. Dennis Jones on March 6, 2019. The article highlights the key textual differences between article 12 of the Massachusetts state constitution and the Fifth Amendment, arguing that this difference in language – which is shared by 23 other states across the country – reflects a difference in meaning. Overall, the article contends that compelled decryption orders should not be allowed under the Massachusetts state constitution, or other state constitutions like it, because they result in a suspect being forced to “furnish” a mountain of “evidence” that will be used against the suspect who is compelled to disclose the passcode.