Is the Fifth Amendment Password Protected?

3-14-2008 National:

We are cautioned to create undecipherable passwords and personal identification numbers to protect our privacy, identity and property. On the flip side, these protections may be put to the test in a criminal investigation.

Until recently, the Fifth Amendment provided guidance in responding to demands for keys to lock boxes and combinations for safes. Now suspects are being asked to disclose information that will access computer hard drives and open encrypted files. How far will the Constitution protect the right against self-incrimination in light of increasingly sophisticated means of securing computer contents?

Secret writing is as old as writing itself, underscoring the longstanding interest in the privacy of communications and records. Even those early Americans who conceived and ratified the constitutional protection against self-incrimination lived through an era of ciphers and codes spawned by the Revolutionary War.

Now, the steady evolution of electronic privacy measures is leading us into new territory and new interpretations of that constitutional protection.

In Doe v. United States,[FOOTNOTE 1] the U.S. Supreme Court decided that a grand jury subpoena compelling petitioner to sign a dozen bank disclosure forms for any records of accounts in three different institutions did not violate the Fifth Amendment. Although conceding "acts that imply assertions of facts" are testimonial, Justice Harry Blackmun concluded that the forms were not communicative since they did not refer to specific accounts, confirm their existence or demonstrate control by petitioner -- in other words, no authentication.

The Court also pointed out that the consent form did not represent the contents of petitioner's mind. They analogized the disclosure document to a key used to open a strongbox as opposed to a combination to a wall safe.

The wall safe has been the classic repository of people's most private and treasured assets and documents. And as the forerunner to the password protected hard drive, it offers a glimpse of where lines might be drawn in assigning the Fifth Amendment privilege. ...much more to go... by Ken Strutin, New York Law Journal