Face Off: Overcoming the Fifth Amendment Conflict Between Cybersecurity and Self-Incrimination.

Abstract

The Founders included the privilege against self-incrimination in the Constitution to protect individual privacy and ensure a fair judicial process. Courts have failed U.S. citizens by neglecting to protect them from compelled unlocking of biometrically encrypted devices. This inaction has created a loophole that contradicts the framework of the privilege against self-incrimination. To correct this mistake courts should reconsider the trend they have set for the Constitution and the Fifth Amendment and consider adopting a forward-thinking cybersecurity lens to conclude that biometric authentication is testimonial. Courts should consider that biometric encryption is akin to a compelled password entry for the purposes of the foregone conclusion doctrine. The foregone conclusion doctrine should be applied in limited circumstances with a specific and high burden of proof so that the "jealous protection of the privilege against self-incriminating testimony" can be preserved. Allowing law enforcement such easy access to smart devices narrows Fifth Amendment protections and the expansive foregone conclusion exception is contrary to both principles of cybersecurity and the spirit of the Fifth Amendment. Courts should move to remediate this at once. These liberties and values can only be guaranteed by courts that are willing to take on cases with issues revolving around biometric encryption, the Fifth Amendment, and the foregone conclusion doctrine.