November 12, 2012 Articles

The Fifth Amendment Versus Compelled Production of Encrypted Data

The case law on the constitutional protections for compelled production of encrypted data is contradictory and uncertain.

By Jayashree Mitra and Stefan Mentzer

Encryption programs that allow users to protect their private electronic data from outside eyes are increasingly popular, as more and more individuals and companies seek to secure confidential information stored in personal electronic devices, local drives, and servers. But when law enforcement officials seize such devices in criminal proceedings, an important question arises: Can the government compel users to provide access to encrypted content without violating their Fifth Amendment protections against self-incrimination?

This is a relatively novel issue. Jurisprudence on the question is sparse and contradictory, and the courts that have considered it have struggled to balance the legitimate needs of law enforcement against individuals’ constitutional rights. This article reviews the handful of decisions that have addressed the issue.

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