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Are Encryption Keys Exempt from Fifth Amendment Protection?

By Chris Dykes
An article posted on Law Technology News (LTN) by Joshua A. Engel, discusses whether an individual can be required by law enforcement to disclose an encryption key or password to access content on a cellphone or computer. This has obvious Fifth Amendment implications because such disclosure can be viewed as an admission that the individual in question possesses and has access to the documents and information sought by investigators. According to the article, courts have used the "foregone conclusion" doctrine to exempt such encryption keys or passwords from Fifth Amendment protection against self incrimination where the investigators were already aware of the documents. See In re Grand Jury Subpoena to Sebastian Boucher, U.S.D.C., D. Vt. No. 2:06-mj-91 (February 19, 2009). The article points out that the emergence of cloud services where documents can be obtained and shared without downloading files to the device has made the government's ability obtain an encryption key or password more pressing. This is guaranteed to be the subject of much debate over the next several years.
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