Law Commons^™

Unlocking The Fifth Amendment: Passwords And Encrypted Devices, Laurent Sacharoff

Fordham Law Review

Each year, law enforcement seizes thousands of electronic devices—smartphones, laptops, and notebooks—that it cannot open without the suspect’s password. Without this password, the information on the device sits completely scrambled behind a wall of encryption. Sometimes agents will be able to obtain the information by hacking, discovering copies of data on the cloud, or obtaining the password voluntarily from the suspects themselves. But when they cannot, may the government compel suspects to disclose or enter their password? This Article considers the Fifth Amendment protection against compelled disclosures of passwords—a question that has split and confused courts. It measures this right …