Decrypting the Fifth Amendment: the Limits of Self- Incrimination in the Digital Era

Technology has outgrown the Supreme Court’s Fifth Amendment jurisprudence. This creates two distinct but related challenges. First, the scope of the “foregone conclusion” doctrine, which was originally formulated to address act-of-production issues for paper documents, is ripe for review and clarification now that documents are almost always digital and often encrypted. Second, the question of what constitutes a “testimonial act” must be revisited to proactively ensure that the Fifth Amendment privilege against self-incrimination is not eviscerated by emerging technologies. The Supreme Court articulated the foregone conclusion doctrine in 1976 in Fisher v. United States and revisited it a quarter of a century later in United States v. Hubbell. In neither case was the Court asked to consider the dizzying array of complex mechanisms available today to store and access electronic information. In the last three years, circuit and district courts drawing their authority from Fisher and Hubbell have produced inconsistent rulings regarding the extent of the Fifth Amendment privilege against selfincrimination with respect to encrypted digital documents. The question of whether a finger-swipe gesture used to unlock a smartphone is a testimonial act has also become important. A circuit split on these critically important components of criminal procedure