"Decryption Originalism: The Lessons of Burr," Is Now Out

The final version of my recent article is now online.

I'm pleased to say that my article, Decryption Originalism: The Lessons of Burr, has just been published by the Harvard Law Review.  Here's the abstract:

The Supreme Court is likely to rule soon on how the Fifth Amendment privilege against self-incrimination applies to compelled decryption of a digital device. When the Court rules, the original understanding of the Fifth Amendment may control the outcome. This Article details an extraordinary case that illuminates the original understanding of the privilege and its application to compelled decryption. During the 1807 treason trial of Aaron Burr, with Chief Justice John Marshall presiding, the government asked Burr's private secretary if he knew the cipher to an encrypted letter Burr had sent to a coconspirator. Burr's secretary invoked the privilege against self-incrimination, leading to an extensive debate on the meaning of the privilege and an opinion from the Chief Justice.

The Burr dispute presents a remarkable opportunity to unearth the original understanding of the Fifth Amendment and its application to surprisingly modern facts. The lawyers in Burr were celebrated and experienced advocates. The Chief Justice allowed them to argue the Fifth Amendment question in exhaustive detail. And an attorney recorded the entire argument in shorthand, including dozens of legal citations to the specific pages of the authorities the lawyers invoked. The rich materials allow us to reconstruct for the first time precisely how the privilege was understood by leading lawyers and Chief Justice John Marshall soon after the Fifth Amendment's ratification. The Article presents that reconstruction, and it concludes by applying Burr's lessons to the modern problem of compelled decryption of digital devices such as cell phones and computers.

 

 

Comments

[Union of Concerned Socks]

The records on my phone, by virtue of their encryption, are records in my mind.

I invoke the 5th. You can't have them.

Are we done here?

[Orin S. Kerr]

Does that mean that if you lose your phone, you can plead insanity because you lost your mind?

[MatthewSlyfield]

What if the defendant disputes that it it his phone?

[Noscitur a sociis]

Thank you for this fascinating article.

It does some to,call into question the wisdom of this particular clause of the 5th amendment,

[Noscitur a sociis]

Er, "seem to" and "amendment."

[Commenter_XY]

What a fascinating debate...the Chief Justice hearing argument for two days, AND it was transcribed. Just imagine being a spectator, watching some of the drafters of the Constitution debate the original meaning.

Professor Kerr....Wonderful article. This layman learned a lot reading it.

[Bubba Jones]

Kerr provides two analogies, but only one makes sense.

"Perhaps ordering a person to enter in a password is best analogized to forcing him to say if he understands the cipher. "

This analogy is easy to test. If the Government demands that I enter a password into a phone or computer, will they be satisfied with the answer that I know the password at this time, but did not know it in the past, and I decline to enter the password into this device.

I predict that the Government will NOT be satisfied with that answer. Because it is the second analogy that is operative, they seek "compelled production of the files revealed by decryption."

Instead: MacNally’s 1802 treatise, relied
on extensively in Burr, identifies the rule as being that “[i]n a criminal prosecution, though the defendant be possessed of the best evidence the nature of the case admits of, yet he cannot be obliged, or even legally required to produce it against himself.”407

While I enjoyed the article, including the short nap I took in the middle, I think it could have been 57 pages shorter. I'm glad I made it to the end, but other readers might start there.

[Bubba Jones]

Ok. IANAL, and I did some further reading:
https://fedsoc.org/commentary/publications/the-fifth-amendment-s-act-of-production-doctrine-an-overlooked-shield-against-grand-jury-subpoenas-duces-tecum

Now I think the Burr case is less helpful because it never got to the question of whether Burr's secretary could be forced to decrypt the letter.

Now I think the correct defense tactic is to deny ownership of the phone. Or perhaps more precisely to refuse to answer the question of whether I own the phone and by extension to refuse to answer the question of whether I know the password.

Knowing the password is clearly incriminating with respect to whether you own the phone, and owning the phone is obviously incriminating with respect to whatever they are looking for.

I suspect most people say something stupid like "give me back my phone" long before they see a lawyer.

[John F. Carr]

The Burr decision is as unsatisfying as any of Chief Justice Roberts' . "Do you know the password now?" and "Did you know the (same) password last year?" are too similar to lead to different results, absent evidence that the password was only learned recently.

Another way to look at original intent is to consider related state rules. Decisions of Massachusetts courts have pointed out that the Bill of Rights derives from the Massachusetts Declaration of Rights, but the federal equivalent has been construed very narrowly in comparison. One case I remember concerned a corporate officer being ordered to turn over incriminating corporate files. Under Massachusetts law he could claim a privilege but under federal law he could not. In DUI cases refusal to cooperate with the police officer can not be used as evidence in a criminal trial. (It can be used to impose a lifetime disability on the other side of the somewhat arbitrary civil-criminal divide.) We also have the so-called "humane practice rule" requiring that a confession be proved voluntary beyond a reasonable doubt, both to the judge and to the jury. I don't know the history of that rule.