The Privilege Against Cellphone Incrimination

Abstract

The standard approach to the problem of compelled decryption of cellphones has been to treat cellphones like glorified lockboxes. The contents are assumed to be the equivalent of private papers, leaving only the passcode subject to dispute. Orin Kerr has helpfully labeled this dichotomy as the “treasure” versus the “key.”

Much of the debate has centered on whether the government may compel production of the key. Kerr’s position is that this debate over the key is essentially moot, because the treasure itself can never be privileged. Whether that treasure is encrypted or unencrypted should not change its availability to law enforcement.

This Essay takes a different tack: How might the line of cases refusing to compel decryption of cellphones be consistent with Fifth Amendment principles? The theory advanced here is that those judicial decisions are best understood as treating cellphones as an extension of “self.” This reframing counters Kerr’s key/treasure metaphor, not by challenging the “key” comparison — as is usually done — but by challenging the “treasure” comparison. A cellphone is not like a lockbox; it is more like the mind. In other words, decrypted data is always privileged testimony when it is extracted directly from within the chassis of a cellphone.

Keywords: fifth amendment, self-incrimination, compelled decryption, privacy, extended mind, personhood