Compelled Decryption and the Fifth Amendment: Exploring the Technical Boundaries

View full paper here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3117984

By Aloni Cohen and Sunoo Park

Published in the Harvard Journal of Law and Technology (JOLT), Fall 2018 issue.

Abstract

This Article examines how the legality of governmentally compelled decryption can be surprisingly sensitive to technological nuances. It overviews the reasoning behind a collection of cases that have shaped the doctrine to date on compelled decryption and the Fifth Amendment, and categorizes past cases into four archetypal patterns. Building upon this, the Article examines the sensitivity of the doctrine to technological change by means of “technological hypotheticals:” that is, by identifying assumptions implicit in courts’ analyses to date regarding the nature of the encryption technology involved, and considering the potential impact of realistic variant technologies (such as special types of encryption) that could challenge those assumptions. Next, the Article revisits the doctrine and the ongoing challenge faced by courts of reaching robust decisions whose underlying reasoning will remain unequivocal and relevant in the face of future technological developments. Towards addressing this challenge, some specific analytical approaches and technical considerations are distilled. Then, inspired by the importance of the concept of existence in Fifth Amendment doctrine as influentially set forth in Fisher v. United States, discusses the nature of existence of encrypted data and passwords as distinct from that of more tangible objects, accentuating some challenges of applying precedent set in the physical domain to digital information. The Article concludes with a brief reflection on the long-term desirability of technological sensitivity as found in compelled decryption cases.