Fifth Amendment privileges take on new light due to cloud computing

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As cloud computing technology continues to become more pervasive, the application of the Fifth Amendment to protecting a suspect's encrypted data is likely to become a more prevalent issue in litigation, finds a paper by J. Adam Engel, vice president of Lycurgus Group published in the Whittier Law Review.

Until now, suspects have infrequently invoked their Fifth Amendment right against self-incrimination when the government has sought to compel suspects and defendants to provide passwords and encryption keys to access digital assets, he writes.

That's due in part to the fact that the right is limited to testimonial evidence--evidence that explicitly or implicitly, provides or discloses information--and that the "foregone conclusion" doctrine usually applies, says Engle.

The foregone conclusion doctrine says that providing information is not subject to the Fifth Amendment if the government knows that the data exists, knows where it's located and providing the evidence adds little or nothing to the government's case, writes Engle.

Rather than storing digital assets directly on computers or smartphones, the cloud has enabled data to be stored remotely. Cloud computing makes the possession of an encryption key or password more important to the government, as it needs to show ownership or access information.

"As a result, suspects and defendants may be successful in arguing that the foregone conclusion doctrine does not make the privilege against self-incrimination inapplicable," writes Engle.

There are significant policy implications should more suspects begin invoking their Fifth Amendment privledges to protect digital assets in the cloud and avoid admission that they are, in fact, the owner of those assets.

"If people using advanced encryption techniques are not compelled provide passwords and encryption keys, then potential criminals will be able to defeat the efforts of law enforcement officers to obtain such evidence, even when warrants have been obtained," writes Engle.

Engle predicts this will make the prosecution of child pornography and terrorism cases "exceedingly difficult if not impossible."

For more:
- go to the paper download page on SSRN, "Rethinking the application of the Fifth Amendment to passwords and encryption in the age of cloud computing"

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