Catch Me If You Scan: Constitutionality of Compelled Decryption Divides the Courts

In the digital age, courts have been tasked with determining how longstanding constitutional protections for criminal suspects and defendants apply to new forms of technology like smartphones that are portable, nearly ubiquitous, and increasingly capable of revealing extremely intimate details of their owners’ lives. Many court cases and legal commentators have focused on when law enforcement searches of electronic devices are permissible under the Fourth Amendment. That Amendment protects against unreasonable “searches and seizures” by the government, and in recent cases such as Riley v. California and Carpenter v. United States, the Supreme Court has recognized that a search of digital information associated with a mobile device often requires a warrant supported by probable cause to be considered “reasonable” under the Fourth Amendment.

Obtaining a warrant to search a smartphone or other electronic, data-containing device does not guarantee that law enforcement can access the device’s data, however, as such devices “can be and often are encrypted.” And decryption frequently requires entering a password or, increasingly, using a biometric identifier such as a fingerprint or facial scan. When a warrant is obtained to search a protected device, the question becomes whether a suspect or ostensible owner of the device can be compelled to furnish the password or biometric identifier needed to access the device’s data