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What Am I Really Saying When I Open My Smartphone: A Response To Prof. Kerr, Laurent Sacharoff

Sturm College of Law: Faculty Scholarship

In his forthcoming article in the Texas Law Review, Compelled Decryption and the Privilege Against Self-Incrimination, Orin S. Kerr addresses a common question confronting courts. If a court orders a suspect or defendant to enter her password to open a smartphone or other device as part of a law enforcement investigation, does that order violate the Fifth Amendment right against self-incrimination?

To answer this question, Kerr appropriately looks by analogy to existing Fifth Amendment case law as applied to document subpoenas, the “act of production” doctrine, and its mysterious cousin, the “foregone conclusion” doctrine. From these materials, he gleans a …