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Catch Me If You Scan: Constitutionality of
Compelled Decryption Divides the Courts
March 6, 2020
In the digital age, courts have been tasked with determining how longstanding constitutional protections
for criminal suspects and defendants apply to new forms of technology like smartphones that are portable,
nearly ubiquitous, and increasingly capable of revealing extremely intimate details of their owners' lives.
Many court cases and legal commentators have focused on when law enforcement searches of electronic
devices are permissible under the Fourth Amendment. That Amendment protects against unreasonable
searches and seizures by the government, and in recent cases such as Riley, 1,. C afiornia and Carpenter
v. Ui nited States, the Supreme Court has recognized that a search of digital information associated with a
mobile device often requires a warrant supported by probable cause to be considered reasonable under
the Fourth Amendment.
Obtaining a warrant to search a smartphone or other electronic, data-containing device does not guarantee
that law enforcement can access the device's data, however, as such devices can be and often are
encrypted. And decryption frequently requires entering a password or, increasingly, using a biometric
identifier such as a fingerprint or facial scan. When a warrant is obtained to search a protected device, the
question becomes whether a suspect or ostensible owner of the device can be compelled to furnish the
password or biometric identifier needed to access the device's data. Courts in recent years have had to
grapple with whether compulsion in such cases would violate the Fifth Amendment's Self Incrimination
Clause, which provides that [n]o person.., shall be compelled in any criminal case to be a witness
against himself[.] Courts have reached conflicting conclusions as to whether and when the compelled
decryption of a password- or biometric-identifier-protected device runs afoul of the Fifth Amendment.
And perhaps counterintuitively, the trend appears to favor recognizing more constitutional protection for
password-protected devices than for devices protected by a biometric identifier. This Sidebar provides an
overview of the Self Incrimination Clause and relevant case law; surveys some recent cases addressing
the Fifth Amendment's application to compelled decryption of password- and biometric-identifier-
protected electronic devices; and concludes with some considerations for Congress.
Fifth Amendment: Overview of Pertinent Principles
For the Fifth Amendment privilege against compelled self-incrimination to apply, what the government is
compelling must (among other things) be considered testimonial, meaning that the compelled
Congressional Research Service
https://crsreports.congress.gov
LSB10416
CRS L.eg Sidebar
Prepaed for Membeivs and
Cornm ittees o4 Co q _gress ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------](ViewImageLocal?handle=hein.crs/govcapz0001&div=1&collection=&method=preview&ext=.png&size=3)
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