Orin Kerr is misapplying the 4th and 5th Amendment

The setup: Kerr posted an argument that the 5th Amendment allowed police to compel an individual to reveal their encryption password (to a phone or computer) so the police could search it. A commenter responded that his analysis was legally correct but completely wrong, as it results in people having absolutely no privacy. The commenter is correct, but Kerr responds:

Orin Kerr at the Volokh ConspiracyI certainly appreciate that perspective. [ed: he doesn't; I've had this argument with him before] 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.

Here's the thing. The fourth amendment requires a warrant before government can break into your house and search your papers, or arrest you and search your pockets. If the government gets a warrant, it does not require you to give them the keys to your house. You're perfectly justified is refusing to help them search. They will then break into your house, causing all sorts of property damage to punish you for refusing to help, but you do not have to help, and it's generally wise not to help, because helping can be mistaken for consent.

In the case of an encrypted computing device, the police are unable to break in within your help. That's why they want to compel you to help. But their attempts to compel you to help fail by means of the 5th amendment as well. They are asking you to testify against yourself by providing them with your decryption password. They got a warrant, which authorizes them to take the physical device, but they need your help to open it. It's like a door they can't break down.

And they have no right to force you to help them.

Now that I've disposed of the substantial argument, let's consider Kerr's argument:

Orin Kerr at the Volokh ConspiracyIn the California case, the government had obtained a search warrant to search the suspect's house and to seize devices that contained child pornography. The issue before the court was whether the suspect could be compelled to help the government execute the warrant by unlocking the devices seized during the search. The Wisconsin case was similar. The government obtained a search warrant before it used the passcode to unlock the phone. The defendant moved to suppress the fruits of the warrant search.

He goes right to the favorite argument of statists and tyrants: save the children.

Why is this guy being given a platform on a supposedly libertarian blog again? I used to respect the Volokh crowd.

This entry was published Wed Apr 11 09:54:35 CDT 2018 by TriggerFinger and last updated 2018-04-11 09:54:35.0. [Tweet]

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