A. Michael Froomkin

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C. Fifth Amendment Issues

The Fifth Amendment guarantees that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself."{531} The "`historic function'" of this part of the Fifth Amendment is to protect a "`natural individual from compulsory incrimination through his own testimony or personal records.'"{532} Currently, there is a tension in the Supreme Court's treatment of the reach of the Fifth Amendment. On the one hand, the Court interprets the right narrowly, to apply to criminal defendants only.{533}
[Although the Court] has often stated [that the Fifth Amendment] protect[s] personal privacy, . . . [the] Court has never suggested that every invasion of privacy violates the privilege. . . . [T]he Court has never on any ground, personal privacy included, applied the Fifth Amendment to prevent the otherwise proper acquisition or use of evidence which, in the Court's view, did not involve compelled testimonial self-incrimination of some sort.{534}
On the other hand, the Court has never questioned the special nature of some private noncommercial personal papers, such as diaries, and has held that these retain their Fifth as well as Fourth Amendment protection.{535} With one exception, neither the Fourth nor the Fifth Amendment has ever been understood to allow the government to require [Page 834]civilians, in peacetime, to structure their lives to make hypothetical future searches by law enforcement easy. That exception, the required records doctrine, is inapposite to mandatory key escrow.{536} Instead, the Fifth Amendment is potentially relevant to mandatory key escrow in two ways. The required disclosure of the chip key resembles the required disclosure of a private paper, which may have some Fifth Amendment protection, and the forced utterance of a LEAF may be the type of incriminating testimony proscribed by the Fifth Amendment.

1. The Chip Key as a Private Paper

In Boyd v. United States,{537} the Supreme Court stated that private papers are an owner's "dearest property."{538} Relying on both the Fourth and Fifth Amendments, the Court found that allowing the state to compel production of that property would be "abhorrent to the instincts" of an American and "contrary to the principles of a free government."{539} As recently as Bellis v. United States,{540} the Supreme Court reemphasized that the Fifth Amendment protects "`a private inner sanctum of individual feeling and thought'--an inner sanctum which necessarily includes an individual's papers and effects to the extent that the privilege bars their [Page 835]compulsory production and authentication."{541} Nevertheless, the rule found "abhorrent" in 1886 is now practically the law.{542}

The Supreme Court has eliminated most Fifth Amendment protections from incriminating documentary evidence sought by compulsion. First, the Supreme Court narrowed the privilege so that it applies only if the act of producing papers or records, by itself, has a self-incriminatory communicative or testimonial aspect. If the act of handing over the papers is noncommunicative--that is, if it neither reveals the existence of the document nor authenticates it--then the Fifth Amendment ordinarily does not apply.{543} Second, only natural persons can find shelter under the Fifth Amendment, and only for papers they both own and control. Thus, corporations can never claim the privilege, and neither can natural persons with regard to corporate records, even if they created and now control those records.{544} Third, once papers are handed to [Page 836]another, the legitimate expectation of privacy needed to maintain a claim under either the Fourth or Fifth Amendments disappears.{545} Fourth, records required to be kept for legal or regulatory purposes are outside the privilege.{546} Fifth, and only tangentially related to documents, the Supreme Court has held that persons can be forced to perform nontestimonial acts such as giving handwriting samples.{547} Sixth, aliens outside the sovereign territory of the United States do not ordinarily enjoy Fifth Amendment rights.{548}

The Court's narrowing interpretations notwithstanding, Boyd is not completely toothless. Boyd has a residual vitality for nonbusiness, nonfinancial, private papers and documents that are kept in the home, if only because the Supreme Court has yet to compel production of such a document.{549}

2. Is a Chip Key or a Session Key "Incriminating"?

The hornbook rule is that testimony must be incriminating when uttered in order to be entitled to protection under the Fifth Amendment. The testimony must relate to past conduct and, if it does not directly incriminate ("Yes, I did it") must at least create a "substantial" and "real" hazard of prosecution for the Fifth Amendment to apply.{550}

The Fifth Amendment does not protect testimony that might become incriminating through future conduct. In United States v.[Page 837] Freed,{551} the Supreme Court upheld a National Firearms Act registration requirement against a Fifth Amendment claim that the disclosed information might be used against the defendant if he committed an offense with a firearm in the future.{552}

Forced disclosure of a chip key and a session key fit uneasily into this framework. The forced disclosure of a chip key{553} before the chip has ever been used to communicate cannot be incriminating because nothing has happened yet. Thus, mandatory key escrow itself fits squarely within the Freed rationale. In contrast, the LEAF raises a more delicate problem. Because the LEAF precedes the actual conversation, forced utterance of a LEAF could be said to fall within the Freed rationale also. But this is really too facile to be credible. The encrypted session key within the LEAF is unique, and it is directly tied to the conversation that follows it. In any case, whether the LEAF is part of the conversation or not, it is an utterance that creates a "substantial" and "real" hazard of prosecution if the conversation that follows is an incriminating one, and a public servant happens to be listening.{554} On the other hand, the Supreme Court has emphasized that nontestimonial compelled disclosures are not privileged,{555} and the LEAF itself is not testimonial, save insofar as it ties a particular conversation to a particular pair of chips.

In summary, the Fifth Amendment may not protect disclosure of a chip key against mandatory key escrow, but it protects individuals against the routine warrantless use of that key to decrypt the LEAF and, especially, to decrypt an incriminating communication. Because the stated purpose of escrowed encryption is to allow the government to retain the abilities it currently has, and the government accepts that a warrant is required to conduct a wiretap, the Fifth Amendment imposes no significant restriction on a[Page 838]mandatory key escrow proposal of the type hypothesized.

D. Privacy Issues

The constitutional right to privacy derives from the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments, although it exceeds the sum of its parts.{556} The right to privacy has at least three components: (1) a right to be left alone; (2) a right to autonomous choice regarding intimate matters; and (3) a right to autonomous choice regarding other personal matters.{557} There is no question that mandatory key escrow would infringe on each of these component rights. The question, already partly canvassed above,{558} is whether the courts would consider the intrusions reasonably related to a sufficiently compelling state interest to justify the intrusion. As might be expected, the limitations on mandatory key escrow arising from the right to privacy conform closely to those derived from the First, Fourth, and Fifth Amendments from which the privacy right partly emanates. Privacy jurisprudence is in some turmoil, however, and it is possible that privacy will prove to be the most fertile area for legal adaptation to the new challenges posed by increasing state surveillance power and compensating private responses such as cryptography.

1. The Right to Autonomous Choice Regarding Nonintimate Matters

The right to autonomous choice regarding nonintimate personal matters is the most general component of the right to privacy. More outward-looking than the right to be left alone, but more wide-ranging than the right to autonomous choice regarding intimate matters, this component relates to those important, individual, personal decisions that are fundamental without being intimate, [Page 839]such as the choice of friends, political party, vocation, and other allegiances.{559} Disputes concerning this category, such as alleged infringements of associational freedom, tend to be adjudicated directly under the rubric of one or more amendments in the Bill of Rights rather than by appeal to privacy principles. These aspects of privacy law were canvassed above{560} and will not be repeated here.

2. The Right to Be Left Alone

The right to privacy includes a generalized "right to be let alone,"{561} which includes "the individual interest in avoiding disclosure of personal matters."{562} This strand forms the basis for many claims to a right to informational privacy.{563} Informational[Page 840]privacy is the area in which a right to privacy most easily translates into a right to secrecy. In Whalen v. Roe{564} the Court allowed New York state to keep a computerized list of prescription records for dangerous drugs and to require physicians to disclose the names of patients to whom they prescribed those drugs.{565} The decision balanced the social interest in informational privacy against the state's "vital interest in controlling the distribution of dangerous drugs."{566} Finding New York's program to be narrowly tailored, and replete with security provisions designed to reduce the danger of unauthorized disclosure, the Supreme Court held that the constitutional balance tilted in favor of the statute.{567}

Mandatory key escrow appears comparable in its intrusive effects to the regulatory scheme upheld in Whalen, so long as the courts hold the government to its promise that keys will remain secret and will be released only pursuant to a warrant or to a very limited number of other lawful orders. Without that proviso, mandatory key escrow would verge upon unjustified data collection.{568} The warning in Whalen that the Court is "not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files"{569} suggests, however, that informational privacy rights may grow in response to new technological threats to privacy.

3. The Right to Autonomous Choice Regarding Intimate Matters

A second component of the right to privacy is a narrow individual right to make intensely personal decisions about certain intimate associations without state interference. The Court has[Page 841]described certain decisions about intimate association and family- and sex-related decisions as falling within a special privacy zone for "marriage, procreation, contraception, family relationships, and child rearing and education."{570} The contours of this zone have always been fuzzy, in part because of long-standing decisions forbidding certain religious minority marriage practices{571} that would logically appear to belong within the zone of privacy described by cases such as Griswold v. Connecticut, Eisenstadt v. Baird, Paul v. Davis, and Roe v. Wade.{572} The fuzziness currently is at an all-time high because of the Court's decision in Bowers v. Hardwick{573} and the continuing controversy concerning the right[Page 842]to abortion.{574}

As applied, this second strand of privacy jurisprudence is primarily directed at the preservation of personal autonomy,{575} and especially that autonomy relating to the sexual and reproductive practices and values of the traditional family and the "traditional unmarried couple."{576} Secrecy has a role to play here too, because sometimes secrecy is a prerequisite to the exercise of autonomy, even (or especially) within the family.{577}

Furthermore, electronic communications will increasingly become a critical part of intimate association. In a world in which the commuter marriage is increasingly common, electronic communications such as the telephone, fax, and especially e-mail (which is cheaper and less intrusive than a telephone, more private than a fax, and often instantaneous) are increasingly becomingthe glue that holds marriages and other intimate relationships together.{578} The current rule, which provides much greater privacy protection to the bedroom than to the intimate, transcontinental, interspousal e-mail,{579} may soon need revision.{580} Such a revi[Page 843]sion should begin by reaffirming what remains of Boyd, particularly as it applies to personal papers such as diaries.{581}

E. What Next?

On balance, as the law stands today, private, noncommercial users of encryption probably have a Fourth Amendment right to resist mandatory key escrow. Whether commercial users or corporations would have such a right under current doctrines is less clear. Even the existence of the right for private, noncommercial users appears to be a distressingly close question given the current state of civil rights doctrine and the great importance that the courts give to law enforcement and national security. The law in this area has undergone great change in the past two decades, and there is no reason to believe that the evolution has stopped.

The collapse of the distinction between home and office, fueled in part by the growth of telecommuting, will place a further strain on existing rules that attempt to distinguish between private, noncommercial activities whose classical locus is the home, and less private, more commercial activities whose traditional location was the office. If the courts further erode the remnant of the zone of privacy that still surrounds the home, the growth in freedom to work at home will have come at a high price.

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