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65 Ark. L. Rev. 133 (2012)
Passwords, Profiles, and the Privilege against Self-Incrimination: Facebook and the Fifth Amendment

handle is hein.journals/arklr65 and id is 137 raw text is: Passwords, Profiles, and the Privilege Against Self-Incrimination: Facebook and the Fifth Amendment Caren Myers Morrison* I. INTRODUCTION ...................................... ...... 133 II. THE USE OF FACEBOOK IN CRIMINAL PROSECUTIONS ..................134 A. A New Tool for Prosecutors .................... ..............135 B. How Law Enforcement Can Obtain Facebook Information ....... ......138 C. The Problem of Authentication ........................... 139 1. Facebook Messages ..................................... 140 2. Profiles and Postings .....................................141 III. PRODUCTION OF FACEBOOK INFORMATION UNDER THE FIFTH AMENDMENT ............ 143 A. The Shifting Meaning of Testimony ................... ........144 B. The Act of Production Doctrine ........................... 149 C. Grants of Immunity and the Ban on Derivative Use ........... ....... 155 IV. POSSIBLE CONSEQUENCES OF A FIFTH AMENDMENT BAR ............157 A. A Greater Threat to Privacy? ........................... ........ 157 B. Retrenching the Act of Production Doctrine ........................ 159 V. CONCLUSION ............................................162 1. INTRODUCTION Does the Fifth Amendment privilege against self- incrimination shield someone who has posted incriminating information on his Facebook page from being forced to disclose his password or provide access to his profile? While in most cases, Facebook information is public, or law enforcement has sufficient identifying information about the account to subpoena the company directly, in rare situations a law-enforcement officer might find herself in the peculiar position of believing that incriminating information is posted on a Facebook page, but having no way to get to it without the suspect's cooperation. *Assistant Professor, Georgia State University College of Law. I am grateful to Ronald J. Allen, Jeffrey Bellin, Russell Covey, and Nirej Sekhon for their insightful comments on an earlier draft of this paper. Special thanks to my research assistants, Mary Ellen Lighthiser and Morgan Medders. 133

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