Compelled Decryption and the Right Against Self-Incrimination: Obsta Principiis

Amidst the debate over compelled decryption, most courts and commentators have failed to recognize that the Act of Production Doctrine has swallowed the right against self-incrimination. The right against self-incrimination was created for the express purpose of preventing the government from compelling self-incrimination, particularly in the form of oral or written testimony, or by the production of incriminating books and papers. The English and early-American cases make this point in no uncertain terms. “[T]he reason why in such cases a man needs not to answer, is, because that no man ought to accuse himself” and “the defendant is never forced to produce any evidence, though he should hold it in his hands in court.” Yet, in the compelled decryption cases, the right against self-incrimination sounds quite different. In addressing the question of whether a person can be compelled to “produce” a password under the Act of Production Doctrine, one court expressed its understanding that “[t]here is some support for the idea that the written disclosure of the password would amount to direct testimony.” Another court held that the compelled verbal disclosure of a password did not offend the Fifth Amendment because “the communication was sought only for its content and the content has no other value or significance.” The stakes in the compelled decryption cases are immense. The right against self-incrimination is not just a right to silence, it protects the human conscience, the right to privacy, and the value of books and papers. The right against self-incrimination also defines the difference between inquisitorial and accusatorial systems of legal procedure. Should the Act of Production Doctrine persist, the right against self-incrimination will disappear and the principles supported and protected by the right will be washed away. Therefore, this work proceeds in four parts. Part I briefly addresses the question of constitutional interpretation before continuing on to examine the origin and development of the right against self-incrimination in England and America. Then, Part II addresses the history of the Supreme Court’s self-incrimination jurisprudence. Part II first tracks the Court’s original and constitutionally faithful doctrine of self-incrimination, which is termed the Boyd-Bram Analysis. Part II then examines how the Court slowly abandoned the Boyd-Bram Analysis in favor of doctrines fundamentally opposed to the right against self-incrimination, including the Act of Production Doctrine. Part II also provides a detailed analysis of the Act of Production Doctrine’s many faults, and details how the Court was unable to clarify the doctrine in subsequent cases. The chaos that defines the compelled decryption cases is the subject of Part III. As an initial matter, Part III provides a detailed but accessible explanation of how encryption works and addresses common misconceptions. With a technical understanding of encryption in hand, Part III then argues that the inherent flaws of the Act of Production Doctrine explain why the state and lower federal courts have been unable to agree about even the most basic questions of self-incrimination. The two major sources of confusion are linked to the Act of Production Doctrine’s concept of communications and a subsidiary analysis known as the Foregone Conclusion Doctrine. Part III provides a series of tables and figures which quantify the scale of disagreement and confusion over the issue of compelled decryption. Part IV examines the impact of the Supreme Court’s retreat from the Boyd-Bram Analysis on the right against self-incrimination, how the issue of compelled decryption is properly treated under the Fifth Amendment, and the future of self-incrimination jurisprudence. Part IV makes three primary arguments. First, Part IV argues that the compelled decryption cases and the Act of production Doctrine are a direct threat to the letter and spirit of the right against self-incrimination. Second, that compelled decryption violates the Fifth Amendment right against self-incrimination. Third, that the Boyd-Bram Analysis is well-positioned to become the Supreme Court’s primary doctrine of self-incrimination.