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Volokh Conspiracy

In Decryption Cases, Don't Forget the Fourth Amendment

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.

In 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.

I realize that readers may disagree on whether the Fourth Amendment warrant requirement amounts to "real privacy." As I've joked before, electronic privacy debates have two stages: the first stage where the complaint is that the government shouldn't be allowed to do that without a warrant, and the second stage where the complaint is that the government shouldn't be able to do that with only a warrant.

But it seems worth noting, in debates on the legal limits of decryption, that the warrant requirement of the Fourth Amendment is an agreed-upon floor to search devices whether they are encrypted or not. The Fourth Amendment is the part of the Constitution that is ordinarily about the privacy of "persons, houses, papers , and effects," and its full protection already applies. The issue under debate is what additional legal limits are imposed on unlocking the devices in addition to the Fourth Amendment warrant requirement for searching them. The warrant requirement isn't everything. But it isn't nothing, either.