Academic journal article Rutgers Computer & Technology Law Journal

Password Protection and Self-Incrimination: Applying the Fifth Amendment Privilege in the Technological Era

Academic journal article Rutgers Computer & Technology Law Journal

Password Protection and Self-Incrimination: Applying the Fifth Amendment Privilege in the Technological Era

Article excerpt

  I. INTRODUCTION  II. THE FIFTH AMENDMENT'S SELF-INCRIMINATION CLAUSE, THE        ACT OF PRODUCTION DOCTRINE, AND THE FOREGONE        CONCLUSION DOCTRINE III. REVIEWING THE SMALL UNIVERSE OF TECHNOLOGICAL        CASES      A. TESTIFYING ABOUT PASSWORDS         1. UNITED STATES V. KIRSCHNER      B. ENTERING PASSWORDS         1. IN RE GRAND JURY SUBPOENA TO SEBASTIEN            BOUCHER         2. UNITED STATES V. FRICOSU         3. IN RE GRAND JURY SUBPOENA DUCES TECUM DATED         MARCH 25,2011 (UNITED STATES V. DOE)  IV. PASSWORDS AND DECRYPTION: REVEALING THE CONTENTS OF         ONE'S MIND      A. THE ACT OF DECRYPTION IS A TESTIMONIAL         COMMUNICATION      B. THE FOREGONE CONCLUSION DOCTRINE DOES NOT APPLY         TO THE PRODCUTION OF NON-PHYSICAL EVIDENCE      C. LIMITED ACT-OF-PRODUCTION IMMUNITY IS INSUFFICIENT         TO PROTECT AGAINST SELF-INCRIMINATION   V. CONCLUSION 

I. INTRODUCTION

A computer is the technological equivalent of a safe, protecting undisclosed documents that the owner wishes to remain private. Computer privacy is neither new nor unique. This article was written on a password protected laptop computer. Computer passwords, like safe combinations, protect the private contents contained therein; including potentially incriminating content. When the government compels an individual to provide the contents of his or her computer, either by testifying to the password or entering the password itself, does the Constitution provide any level of protection?

This article contends that the Fifth Amendment's privilege against self-incrimination protects an individual from being compelled to enter a computer password, or otherwise decrypt the contents of a computer. The government may still require the defendant to enter a computer password, but only if the defendant is granted both use and derivative-use immunity.

Part II of this article provides a brief overview of the Self-Incrimination Clause, as well as two related legal doctrines that often come into play when courts examine the Self-Incrimination Clause. The first being the act-of-production doctrine, which serves to protect a defendant's production of incriminating evidence that implies statements of fact; the other being the foregone conclusion doctrine, which provides that where the location, existence, and authenticity of the purported evidence is already known to the government, the contents of the individual's mind are not used against him, and the privilege does not apply.

Part III analyzes the relatively small number of cases that address computer passwords and the Fifth Amendment. First, this section addresses whether the privilege against self-incrimination applies when a defendant is compelled to testify about his password. This section then reviews three cases in which a defendant is compelled to enter a password, or otherwise decrypt a computer's contents.

Part IV of this article contends that the act of decryption is a testimonial communication deserving the full protections guaranteed by the Fifth Amendment. Much like entering a combination into a wall safe, entering a password into a computer necessarily reveals the contents of the defendant's mind. And while the voluntarily provided contents of the computer may not receive protection, the foregone conclusion doctrine does not apply to the production of non-physical evidence existing only in the mind of the defendant. This section concludes that the only way around the privilege against self-incrimination is to provide the defendant with both use and derivative-use immunity.

The Constitution must keep pace with society's interest in keeping computer contents private. While our Founding Fathers could not have contemplated the existence of computers while drafting the Constitution, they surely envisioned the importance of protecting individuals from government compelled production of incriminating evidence.

II. …

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