The Fifth Amendment

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• Readings:
  • Orin S. Kerr, Compelled Decryption and the Privilege Against Self-Incrimination, 97 Texas Law Review 767 (2019)
• Notes: I have three goals for reading Kerr’s piece:
  1. It’s a nice window for talking about encryption. I think it gives us a concrete way to talk about what users, companies, and governments can do to use computers to hide or access data without getting dragged into the full encryption-wars debate.
  2. Is Kerr’s doctrinal argument in Parts I and II clever, or too clever by half? Discuss.
  3. Regardless of whether you agree with Kerr’s conclusions or not, this is a beautifully written and argued article. So I plan to take a little time to look at how he puts the pieces of his argument together.
• Questions:
  1. What is encryption?
  2. What are the different ways to read encrypted data?
  3. What does the Fifth Amendment say about secret information? Why?
  4. What is the foregone conclusion doctrine? How does Kerr think it applies? Do you agree?
  5. When should government be able to compel decryption by demanding assistance from the suspect? From third parties?
• Additional Resources:
  • Orin S. Kerr and Bruce Schneier, Encryption Workarounds, 106 Georgetown Law Journal 989 (2018)
  • Aloni Cohen, Sarah Scheffler, and Mayank Varia, Can the Government Compel Decryption? Don’t Trust — Verify?
  • Laurent Sacharoff, What Am I Really Saying When I Open My Smartphone? A Response to Orin S. Kerr, 97 Texas Law Review Online 63 (2019). A brief but thoughtful response to Kerr.
  • Orin S. Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment, 125 Harvard Law Review 476 (2011)
  • Charles Duan and James Grimmelmann, Content Moderation on End-to-End Encrypted Systems: A Legal Analysis, 8 Georgetown Law Technology Review 1 (2024)