criminal-law encryption fifth-amendment
Can you be legally compelled to disclose your password in a criminal investigation?
<p>Let's say you use encryption on your computer, and you've been arrested. The police believe there is evidence on your computer, and have seized the computer via a warrant. The police cannot extract any information because your hard drive is encrypted. The police were unable to find the password via other means (such as written notes). You are aware that there is incriminating evidence on your hard drive, so you do not give up the password willingly.</p>

<p>Can the police get a court order or otherwise legally compel you to provide the password to decrypt your hard drive?</p>

<p>(I imagine this would implicate your right to refuse to answer questions that could incriminate yourself.)</p>

<p>This is a super complex question and no one really knows the answer yet.</p>

<p>Orin Kerr is probably the leading scholar on this question, and he generally argues that forced decryption of one's own device is not a Fifth Amendment violation. As I understand it (and oversimplifying by a lot), one key piece of his position is that requiring you to put in your password is a statement about your knowledge of the password itself, not about the contents of the machine into which you are entering it. And because your knowledge of the password for your own devices is presumed, an exception for "foregone conclusions" would leave this compulsion unprotected by the Fifth Amendment. You can read one of his explanations <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/06/07/the-fifth-amendment-limits-on-forced-decryption-and-applying-the-foregone-conclusion-doctrine/?utm_term=.29d21abd4279" rel="nofollow noreferrer">here</a>.</p>

<p>The <a href="https://caselaw.findlaw.com/us-11th-circuit/1595245.html" rel="nofollow noreferrer">Eleventh Circuit</a> disagreed with that approach, but a California judge recently <a href="https://orinkerrblog.files.wordpress.com/2018/04/usvspencer.pdf" rel="nofollow noreferrer">reached a conclusion similar to Kerr's</a>.</p>

<p>This will probably by a question for SCOTUS before too long.</p>
