This Article examines the application of the Fifth Amendment privilege against self-incrimination to compelled disclosure of unencrypted data. Such disclosure can include provision of passwords to access encrypted data as well as, increasingly, providing unencrypted data after compelled decryption.
The pervasiveness and persistence of electronic data drastically increases the availability of information with potential evidentiary value that has not previously existed with physical evidence. The courts have struggled with finding the appropriate balance in determining the scope and applicability of the privilege against self-incrimination to electronic evidence. The lack of precise physical world analogues to encryption has led to particular difficulties in this regard. I argue that encrypted data deserves broader consideration under the Fifth Amendment than heretofore established by relevant precedent. The changing technology should not be used as a reason to eviscerate the privilege against self-incrimination.
A Witness Against Himself: A Case for Stronger Legal Protection of Encryption,
30 Santa Clara High Tech. L.J. 375
Available at: http://digitalcommons.law.scu.edu/chtlj/vol30/iss3/2