Volume 57
Issue 1
Winter '20

Compelled Decryption & State Constitutional Protection Against Self-Incrimination

Written By: David Rassoul Rangaviz

Abstract

Compelled decryption is the most important self-incrimination issue of the digital age. Almost everyone carries a phone on them at all times.1 When someone is arrested while carrying a phone, the government must get a warrant before searching it. Armed with a warrant, the government can search the phone. But if the phone is locked with an encrypted passcode, the government has two choices: hack in, or force the suspect to unlock it. The former is constrained only by the limits of the government’s technical ability and resources. The latter is constrained by the self-incrimination provision of the Fifth Amendment to the United States Constitution, which prohibits any person from being “compelled in any criminal case to be a witness against himself . . . .”

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