Orin Kerr writes:
I am pleased to say that the Texas Law Review has published the final version of my article on how the Fifth Amendment applies to compelling a person to enter a password: Compelled Decryption and the Privilege Against Self-Incrimination. This article has roots in some blog posts that I wrote here at the Volokh Conspiracy a few years ago. Given the recurring and difficult nature of the question, I decided to expand considerably on the posts by writing the full article. It’s still relatively short by law review article standards, though, at a relatively svelte 33 pages.
Here’s the abstract:
This Essay considers the Fifth Amendment barrier to orders compelling a suspect to enter in a password to decrypt a locked phone, computer, or file. It argues that a simple rule should apply: an assertion of privilege should be sustained unless the government can independently show that the suspect knows the password. The act of entering a password is testimonial, but the only implied statement is that the suspect knows the password. When the government can prove this fact independently, the assertion is a foregone conclusion and the Fifth Amendment poses no bar to the enforcement of the order. This rule is both doctrinally correct and sensible policy. It properly reflects the distribution of government power in a digital age when nearly everyone is carrying a device that comes with an extraordinarily powerful lock.
Read more of his post on Reason.com.