Volokh Conspiracy: Suspect Can Be Compelled to Decrypt Devices If Government Proves He Has The Ability To Do So, Court Rules

United States v. Spencer, 2018 U.S. Dist. LEXIS 70649 (N.D. Cal. Apr. 26, 2018)

Volokh Conspiracy: Suspect Can Be Compelled to Decrypt Devices If Government Proves He Has The Ability To Do So, Court Rules by Orin Kerr:

The right approach, in my view.

Regular readers know my longstanding interest in the correct Fifth Amendment standard for compelling a suspect to decrypt an encrypted device. The Eleventh Circuit adopted one standard in 2012, but I have argued that standard was wrong. Given my interest, I thought I would flag a new decision by District Judge Charles Breyer, United States v. Spencer, that adopts what I have argued is the correct approach. It cites one of my Volokh Conspiracy posts, too, making it a brilliant opinion.

The relevant facts of the case are simple. The government searched Spencer’s home with a warrant to find child pornography. They seized several devices, but some were encrypted. The government is now seeking an All Writs Act order compelling Spencer to decrypt three devices — phone, a laptop, and an external hard drive — in support of the warrant. Spencer has responded that he cannot be ordered to decrypt the devices in light of his Fifth Amendment privilege.

The opinion rejecting Spencer’s argument is short, and in my view quite good, so I thought I would include the full analysis here. (I have put the two footnotes in brackets, and then for readability added a paragraph break after them. Otherwise this is the entire analysis and discussion.)

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