The full text of this Note may be found here.
31 Fordham Intell. Prop. Media & Ent. L.J. 1154 (2021).
Note by Raila Cinda Brejt*
echnological developments change the way we perform tasks by creating more efficient solutions to old problems and giving rise to opportunities not previously possible. Advances in communications technology have made the world feel smaller and more accessible. These changes also affect the methodology of both criminal activity and the investigative procedures of law enforcement. Our fundamental rights are challenged as judges and state actors try to strike the perfect balance between longstanding values and contemporary problems. This Note considers the Fifth Amendment challenges that arise when law enforcement attempts to obtain evidence from a criminal defendant’s encrypted device. This Note will argue that the application of the foregone conclusion doctrine of the Fifth Amendment should require the government to show independent knowledge of the contents of the device that they seek prior to courts granting decryption compulsion orders of the criminal defendant’s personal device. Biometric decryption should be considered the same as password encryption and distinguished from the physical act exceptions to the protections of the Fifth Amendment. To preserve the protections of the Fifth Amendment, we must resist the development of ambiguous and abridged doctrines that carry the potential to swallow our fundamental rights.
* J.D. Candidate, Fordham University School of Law, 2021; M.A., New York University, 2012; B.S., City University of New York, Brooklyn College, 2010. Thank you to Professor Daniel J. Capra for your advice and insightful comments. Additionally, thank you to the Fordham Intellectual Property Law Journal Executive Board, especially Sara Mazurek, for your feedback, time, and encouragement throughout this process.