What happens when a document originally written over two hundred years ago collides headfirst with modern computing? Inevitably, confusion and conflict are the result. In the March 12^th article, “When Does the Constitution Protect the Production of Digital Evidence?” Elkan Abramowitz and Barry Bohrer present a discussion of when the protections of the Fourth and Fifth Amendments apply to digital evidence.

For those that haven’t tackled the Fourth and Fifth Amendments in depth since grade school:

The Fourth Amendment prohibits searches and seizures, unless there is judicial warrant issued because of probable cause.

The Fifth Amendment protects against forced self incrimination.

Abramowitz and Bohrer begin their discussion with the Fifth Amendment. Famously, people plead the Fifth during face to face questioning in order to avoid saying something that would support a case for their guilt. However, it is less clear how someone may plead the Fifth when dealing with encrypted or otherwise protected digital evidence. For example, if a border agent searching a laptop discovers an image of child pornography, confiscates the laptop, and then cannot access it because of password protection, is the owner of the laptop obligated to provide the password? In this case, the answer is yes, because of the foregone conclusion doctrine. In other words, providing the password is simply confirmation of known fact, rather than testimony.

In another example, which Abramowitz and Bohrer open their article with, a defendant in a child pornography case pleaded the Fifth in order to avoid decrypting his hard drive. In this case, the defendant did not have to decrypt his hard drive because the court ruled that the prosecution had no way of knowing if the drive did indeed contain illegal material. Thus, decryption would constitute a testimonial act and was protected.

While the breakdown of when the Fifth Amendment provides protection seems relatively straightforward, the Fourth presents a much bigger challenge. Password cracking and decryption software are now widely used by law enforcement when a computer is seized, and make the production of digital evidence much easier. However, this software also undermines the ability of a person to consent to a search of their computer.

In 2007, during another child pornography case in which the father of the defendant gave the police permission to search the house in which he lived with his son, the U.S. Court of Appeals for the Tenth Circuit narrowly ruled that the reasonable perception of the father’s authority (due to the fact that the father owned the house) meant the search was valid. The minority strongly dissented, stating that third party consent did not give law enforcement the license to bypass the defendant’s password protection. Clearly, this technology presents a significant challenge to a unified interpretation of the Fourth Amendment as applied to digital evidence.

Going forward, the problem of reconciling the rights we hold to be most sacred and the technology we have embraced so enthusiastically will most likely grow in scope and complexity.