Volokh Conspiracy: In Decryption Cases, Don’t Forget the Fourth Amendment by Orin Kerr:
Requiring a search warrant isn’t everything. But it isn’t nothing.
In comment thread to last night’s post on the new cases about decrypting electronic devices, commenter Rossami offers a reaction I have seen elsewhere:
Prof Kerr may be right that these decisions are correct implementations of current law but they are normatively exactly wrong. If the police can merely demand that users decrypt their contents, then we have no real privacy. I find that answer unacceptable.
I certainly appreciate that perspective. But I’d add a reminder that, in both cases, the government was required by the Fourth Amendment to get — and in both cases did get — search warrants based on probable cause before decrypting the devices.