Law Commons^™

The Weak Protection Of Strong Encryption: Passwords, Privacy, And Fifth Amendment Privilege, Nathan K. Mcgregor

Vanderbilt Journal of Entertainment & Technology Law

While the constitutional protection afforded private papers has waxed and waned for more than a century, the Supreme Court has greatly restricted the Fifth Amendment privilege against self-incrimination--at least as applied to voluntarily prepared documents. Specifically, where the government knows of the existence and location of subpoenaed documents, the Fifth Amendment guarantee will not justify a failure to produce them, unless the act of production would itself incriminate the defendant. However, the Self-Incrimination Clause still precludes the compelled creation of documents that are both incriminating and testimonial.

The "private papers" doctrine has remained relatively stable for approximately thirty years now, …