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October 18, 2011

Cell Phone Symposium @ Whittier Law School

Cell phones will be the focus of a Symposium on November 3, 2011 at Whittier Law School.  More information can be found here.

The Symposium is sponsored by Whittier Law School's Center for Intellectual Property Law and Law Review.  Topics include "the privacy, regulation, economics, and intellectual property issues surrounding smart phone technology."

I will be speaking on the issue of whether the police can constitutionally compel a person to provide a password or encryption key for cell phones.  This issue has been discussed previously on this blog.  If you are in California, please stop by and join the discussion.  CLE credits are also available.  

Here is the basis for my talk:

The Fifth Amendment privilege against self-incrimination protects a person from being compelled to provide a testimonial communication that is incriminating in nature.  Most verbal statements that reveal the contents of a person’s mind are considered to be testimonial. 

Similarly, verbal and non-verbal acts that involve an implicit statement of fact, such as admitting that evidence exists, is authentic, or is within a suspect's control are considered to be testimonial statements included within the privilege.   Providing a password or an encryption key is most likely to be viewed by courts as testimonial. Passwords and encryption keys are likely to be possessed solely within the mind of the suspect and must be communicated verbally, placing them squarely within the Fifth Amendments; traditional protections.

 More significantly, regardless of whether the password or encryption key is contained solely in a suspect’s mind or in a written document, the act of providing the password or encryption key implicitly communicates that the person with the password or key has access to or possession of electronic files.  This evidence can be important, for example, in prosecutions where an element of the offense involves the use or possession of the digital files. 

Recent changes in the technological landscape suggest that this issue is likely to become more prevalent in future litigation.  The use of cloud computing services to store documents and images has grown significantly.  Users of cloud services are less likely to actually save images and documents on handheld or personal devices but, instead, will use handheld devices to access images and documents saved on remote computers.  In those situations, the possession of an encryption key or password may become important in order for the government to show ownership or access to records, websites or communications.  


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