Letting Your Phone Testify: Why the Fifth Amendment Should Be An Absolute Bar to Compulsory Unlocking of Secured Smartphones

Abstract

Issues often arise when a defendant or witness in a civil or criminal case assert their Fifth Amendment right to be free from self-incrimination when asked to unlock their smartphone. A substantial disagreement has arisen in state and federal courts across the nation as to the extent of the Fifth Amendment's protection of secured smartphones. Two major issues arising from Fifth Amendment jurisprudence are involved in judicial considerations of this issue: whether the communication of the passcode is testimonial and, if it is, whether it can be allowed under the foregone conclusion doctrine. Additionally, the application of law in these areas has differed between cases involving biometric authentication and passcode authentication methods. This article addresses the differing case law in these areas, and makes an argument that the fifth amendment should be an absolute bar to forcing individuals to unlock their devices. Instead, the government should use the multitude of tools businesses offer to gain access to encrypted information.