Volume 104
Spring '16

The Micro-Hornbook on the Fifth Amendment and Encryption

Written By: Dan Terzian


The DOJ calls encryption a “zone of lawlessness.” Others call it an “[e]scape from [t]yranny.” Opinions on encryption clearly diverge. But this micro-hornbook isn’t about opinions. It’s about the law—on what happens when the government has the right to search digital data (perhaps through a search warrant), but can’t because the data is password protected and encrypted. Can the government, without violating the Fifth Amendment, force a phone’s owner to (a) produce the phone’s password or (b) produce the decrypted phone (i.e., force her first to enter the password and then to produce the phone)? The first question’s answer is easy; the second’s answer is hard; and this micro-hornbook sketches the answers for both.

Continue reading The Micro-Hornbook on the Fifth Amendment and Encryption on HeinOnline.