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The Fragile Fifth Amendment
Equipped with a search warrant or subpoena, and sometimes without either, the government may seize or compel an individual to turn over the contents of a computer or smartphone. But when those contents are encrypted (meaning they cannot be accessed without a password), as most are today, must the owner affirmatively facilitate the government's review by decrypting the data or supplying the password to do so? Few courts have weighed in, but two recent opinions demonstrate the fine factual distinctions that drive the analysis.
Background
Computers and related devices, like smartphones, can store massive amounts of private data. For many people, virtually all of their private information is stored and accessible digitally. Moreover, these devices serve as portals to an even greater accumulation of password-protected information housed in “the cloud.” Due to this increased volume of digital storage, as well as reliance on such storage for increasingly sensitive information and increasing sophistication of those determined to get at that information, data privacy has become a paramount concern. The use of passwords (encryption) has correspondingly mushroomed.
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