Fifth Amendment privileges take on new light due to cloud computing

Fifth Amendment privileges take on new light due to cloud computing
As cloud computing technology continues to become more pervasive, the application of the Fifth Amendment to protecting a suspect's encrypted data is likely to become a more prevalent issue in litigation, finds a paper by J. Adam Engel, vice president of Lycurgus Group published in the Whittier Law Review.

Until now, suspects have infrequently invoked their Fifth Amendment right against self-incrimination when the government has sought to compel suspects and defendants to provide passwords and encryption keys to access digital assets, he writes.

That's due in part to the fact that the right is limited to testimonial evidence--evidence that explicitly or implicitly, provides or discloses information--and that the "foregone conclusion" doctrine usually applies, says Engle.

The foregone conclusion doctrine says that providing information is not subject to the Fifth Amendment if the government knows that the data exists, knows where it's located and providing the evidence adds little or nothing to the government's case, writes Engle.
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