The Right to Remain Encrypted: The Self-Incrimination Doctrine in the Digital Age

By Soares, Nicholas | American Criminal Law Review, Fall 2012 | Go to article overview

The Right to Remain Encrypted: The Self-Incrimination Doctrine in the Digital Age


Soares, Nicholas, American Criminal Law Review


I. INTRODUCTION

   Experience should teach us to be most on our guard to protect
   liberty when the Government's purposes are beneficent. Men born to
   freedom are naturally alert to repel invasion of their liberty by
   evil-minded rulers. The greatest dangers to liberty lurk in
   insidious encroachment by men of zeal, well-meaning but without
   understanding. (1)

One of the fundamental principles of liberty--that an individual may not be compelled to incriminate himself (2)--is at risk. This risk does not arise from an external source nor from a nascent disagreement with the values inherent in that principle. Rather, the venerable protection against self-incrimination guaranteed by the Fifth Amendment is in danger from a short-sighted and inflexible legal doctrine adopted by a Supreme Court that seems to have lost sight of the principles underlying the Amendment's guarantees, a doctrine that is ill-suited to cope with technological advances in areas such as encryption.

A pair of recently decided cases exemplifies the shortcomings of the current Self-Incrimination doctrine. In United States v. Fricosu, (3) the United States District Court for the District of Colorado ordered a criminal defendant to provide the Government with an unencrypted version of files from a laptop seized at her residence. When faced with a materially identical set of facts in In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, (4) the United States Court of Appeals for the Eleventh Circuit applied identical doctrine but reached the opposite result, concluding that the defendant did not need to provide the Government with an unencrypted hard drive. This Note will first show that, although the district court's decision in Fricosu contained some analytical flaws, both courts generally adhered to existing doctrine in reaching different results. Next, this Note will demonstrate how the Supreme Court's Fifth Amendment's Self-Incrimination doctrine has drifted away from the original scope of the privilege, and furthermore, how modern doctrine provides significantly less

protection against self-incrimination than did the original interpretation of the Clause. Finally, this Note will show how the decisions in Fricosu and Doe demonstrate the inability of the current doctrine to cope with technological progress, and will suggest that the current doctrinal problems--and a burgeoning circuit split--may be resolved by returning to a conception of the Clause that is in line with its original meaning.

II. BACKGROUND

Both Fricosu and Doe involved an attempt by the Government to force a criminal defendant to produce the contents of encrypted digital storage devices. While the criminal offense alleged in each case was quite different--real estate fraud and possession of child pornography, respectively--both cases raised substantially similar issues of self-incrimination.

A. United States v. Fricosu

In May, 2010, agents from the Federal Bureau of Investigation executed a search warrant on the Peyton, Colorado, home of Ramona Fricosu, a home Ms. Fricosu shared with her children and her mother. (5) Ms. Fricosu, along with her former husband Scott Whatcott, was subsequently indicted on various charges arising from allegedly fraudulent real estate transactions. (6) During the search, the federal agents seized several computers. (7) Among these computers was a Toshiba Satellite M305 laptop, retrieved from Ms. Fricosu's bedroom, that the Government alleged belonged to the defendant. (8) The agents were unable to thoroughly investigate the laptop because its contents were encrypted using commercially available software. (9) The Government subsequently obtained an additional warrant to search the laptop and, pursuant to the All Writs Act, (10) sought a writ from the court requiring Ms. Fricosu to produce the unencrypted contents of the computer, (11) Asserting her Fifth Amendment privilege against self-incrimination, Ms. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Right to Remain Encrypted: The Self-Incrimination Doctrine in the Digital Age
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.