Fordham Law Review Volume 87 Issue 1 Article 9 2018 Unlocking the Fifth Amendment: Passwords and Encrypted Devices Laurent Sacharoff University of Arkansas School of Law, Fayetteville Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Constitutional Law Commons, and the Criminal Procedure Commons Recommended Citation Laurent Sacharoff, Unlocking the Fifth Amendment: Passwords and Encrypted Devices, 87 Fordham L. Rev. 203 (2018). Available at: https://ir.lawnet.fordham.edu/flr/vol87/iss1/9 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact
[email protected]. UNLOCKING THE FIFTH AMENDMENT: PASSWORDS AND ENCRYPTED DEVICES Laurent Sacharoff* Each year, law enforcement seizes thousands of electronic devices— smartphones, laptops, and notebooks—that it cannot open without the suspect’s password. Without this password, the information on the device sits completely scrambled behind a wall of encryption. Sometimes agents will be able to obtain the information by hacking, discovering copies of data on the cloud, or obtaining the password voluntarily from the suspects themselves. But when they cannot, may the government compel suspects to disclose or enter their password? This Article considers the Fifth Amendment protection against compelled disclosures of passwords—a question that has split and confused courts. It measures this right against the legal right of law enforcement, armed with a warrant, to search the device that it has validly seized.