NCJ Number
242823
Journal
American Criminal Law Review Volume: 49 Issue: 4 Dated: Fall 2012 Pages: 2001-2019
Date Published
2012
Length
19 pages
Annotation
This article examines the doctrine of the right against self-incrimination in the current digital age.
Abstract
The right against self-incrimination, the idea that an individual may not be compelled to incriminate themselves, is found in the fifth amendment to the Constitution. This article examines that right and argues that as a result of recent decisions by U.S. courts, the right against self-incrimination is at. The author presents a brief overview of two recent cases involving encrypted computer files where two separate courts reached opposite conclusions applying the self-incrimination doctrine yet both courts were correct in their application of the doctrine. These two cases are United States v. Fricosu and In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011. This is followed by an examination of recent decisions by the U.S. Supreme Court that demonstrate how the Court's application of the self-incrimination clause of the Fifth Amendment has moved away from the original scope of the right against self-incrimination. Next, the author examines the current use of the self-incrimination doctrine especially as it relates to continued and evolving changes in technology. The two earlier cases examined in the article center on the use of encryption to protect an individual's personal data. Modern encryption technologies can make personal data completely inaccessible to the government, thus making the fifth amendment and the right against self-incrimination extremely relevant to current case law. The author shows how recent decisions regarding encrypted data that result in opposing conclusions can use the same doctrine to reach these conclusions. The author argues that modern interpretation of the law must change in order to keep pace with technological advancements.