The Weak Protection of Strong Encryption: Passwords, Privacy, and Fifth Amendment Privilege

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, even though most documents--including private papers --presumably exist on various digital media, the retrieval of which require sophisticated, if ubiquitous, technology. Arguably, encrypted documents do not comport well with the general rule that discoverable materials must be produced in a readable format. Few courts have ruled on motions to quash subpoenas for encrypted files, and each has simply applied the private papers doctrine with no discussion of whether encrypted documents warrant special protection. While the decisions in these cases are reasonable enough, decryption by court order would at least appear to compel incriminating testimony--contrary to the Fifth Amendment. Though unstated in the opinions, these courts may have agreed with the many companies and commentators who compare the encryption of documents to their placement in a locked safe. While merely sequestering documents clearly does not protect them from a valid subpoena, this simple analogy fails to capture several important features of encryption. This Note considers an alternative conceptualization that, while less intuitive, more accurately reflects these important features. Under this paradigm, the private papers doctrine probably still applies to encrypted contraband, but courts should not adhere to an inappropriate analogy in any event. Ideally the Supreme Court would expressly grant encrypted documents no greater protection under the Fifth Amendment than that currently afforded traditional private papers