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The Law of Compelled Decryption is a Mess: A Dialogue

Added 08-11-20 12:21:02am EST - “Why the Supreme Court needs to step in.” - Reason.com

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Posted By TheNewsCommenter: From Reason.com: “The Law of Compelled Decryption is a Mess: A Dialogue”. Below is an excerpt from the article.

I have blogged many times, and written a few law review articles, about how the Fifth Amendment privilege against self-incrimination applies to compelled decryption.  The New Jersey Supreme Court handed down a new decision today, State v. Andrews, that basically leaves me unable to say what the law is.  Instead of trying to describe the law, I think I'll explain it through the following imagined dialogue.

Student: Hi, Professor!  I have a really simple question: Can the government make you unlock your phone if you plead the Fifth?

Teacher: That's a great question.  Let me ask you to be more specific.  When you say, "make you unlock your phone," what do you mean?   Are you asking if they can make you enter in the password to unlock the phone without disclosing the password to the government?

Teacher:  It's not clear.  It depends what state you're in.   If you're in Massachusetts, the state supreme court has ruled that they can make you unlock the phone if it's your phone or there's some other reason to think you know the password.  If you're in Indiana, though, the state supreme court says the law is different.  In Indiana, the government can't make you unlock your phone unless the investigators already know the incriminating evidence on the phone.

Student:  That's confusing! Is the law clearer if the government has another way to have you unlock your phone?  Like, what if they order you to disclose the password rather than enter it?

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