The Skeleton in the Hard Drive: Encryption and the Fifth Amendment

Authors

David W. Opderbeck, Seton Hall University School of Law

Abstract

Courts are grappling with the question whether forced decryption of computer files violates the Fifth Amendment privilege against self-incrimination. This Article supplies the background necessary for courts to address this question. It explains how full disk encryption works and discusses the nature of encryption technology from a semantic and information-theory perspective. It also compares how similar questions have been addressed in other areas of the law that have dealt with computer code as speech: the First Amendment and copyright law. This Article argues that disclosure of a password or encryption key is not a testimonial act and therefore is not privileged under the Fifth Amendment.

Recommended Citation

David W. Opderbeck, The Skeleton in the Hard Drive: Encryption and the Fifth Amendment, 70 Fla. L. Rev. 883 (2018).
Available at: https://scholarship.law.ufl.edu/flr/vol70/iss4/3