No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The way in which most people think of the Fifth Amendment has to do with the right not to be compelled to self-incriminate – we’ve all seen it in movies (and, most recently, before Congressional committees): “On advice of counsel, I respectively refuse to answer under the rights granted me by the Fifth Amendment to the United States Constitution,” or some such variant. Two interesting Fifth Amendment situations have presented themselves in the last couple of weeks, and I would like to discuss them.
First, the infamous Lois Lerner of IRS fame presented her loquacious and self-serving opening statement to the House Oversight and Government Reform Committee, and then promptly refused to answer any questions, invoking her Fifth Amendment rights, later clarifying: “Part of the purpose of the Fifth Amendment is to protect the innocent, and it is in that light that I use it.” Second, Jeffrey Feldman, a Wisconsin man has been told to provide the decryption keys for stored files to investigators under penalty of contempt (i.e., he can be incarcerated without further proceedings until he complies). His attorney, Robin Shellow, is making an argument that the federal magistrate’s decryption order is akin to forcing her client to build a case for the government.
First, Ms Lerner. The formulation of modern Western law follows two basic philosophies: the accusatorial and the inquisitorial. British Common Law (upon which American jurisprudence is based) uses the accusatorial, where the burden of proof lies with the State – the presumption of innocence. Napoleonic Law (practiced in most of the rest of Europe) uses the inquisitorial, where the burden of proof lies with the defendant – the presumption of guilt. Under the accusatorial method there exists the maxim nemo tenetur seipsum accusare, that “no man is bound to accuse himself.” And it is this maxim that is embodied in the “nor shall be compelled in any criminal case to be a witness against himself” clause. It does not speak to “protecting the innocent” because its purpose is to prohibit government from using the accused as evidentiary material. The State, in other words, must prove guilt without benefit of the accused. It’s agnostic on the guilt or innocence of the accused; it merely limits government in how it may go about proving guilt. Ms Lerner is just wrong in her assertion that part of the reason for the Fifth Amendment is to protect the innocent – the whole thrust of the Amendment – as well as the whole of the Constitution to which it is attached, is the limitation of government.
This was not a trivial or obscure aspect of law. Following the Revolution six states had embodied the privilege against self-incrimination in their constitutions, and the privilege was one of those recommended by several state ratifying conventions for inclusion in a federal bill of rights. Madison’s version of the clause read “nor shall be compelled to be a witness against himself,” but upon consideration by the House an amendment was agreed to insert “in any criminal case” in the provision. If there is any assumption of guilt or innocence on the part of the accused, it’s clear that the Founders are protecting the rights of a guilty defendant by not requiring him to testify against himself (not a problem with exculpatory evidence).
Now for Mr Feldman. Federal authorities believe he downloaded child pornography on the file-sharing e-Donkey network. They seized 15 drives and a computer from his suburban Milwaukee apartment with a search warrant. A federal magistrate has ordered Feldman to decrypt the drives by Wednesday the 5th. Feldman has refused, citing the 5th Amendment, and the federal judge could find him in contempt, jailing him pending his compliance. The magistrate in the case stepped aside Monday the 3rd after Ms Shellow argued that only US district court judges, not magistrates, have the legal power to issue decryption orders. As of now, the new judge in the case has not decided whether to uphold the magistrate’s order.
When the magistrate ruled against the government last month, the magistrate said the authorities did not have enough evidence linking Feldman to the data, and that forcing the computer scientist to unlock it would be tantamount to requiring him to confess that it was his. But last month the authorities were able, on their own, to decrypt one drive from Feldman’s “storage system” and discovered over 700,000 files, some of “which constitute child pornography,” and financial information linking Feldman to the “storage system,” the magistrate said. So the original argument (requiring Mr Feldman to confirm the data was his) is now moot. The remaining question involves Mr Feldman’s requirement to assist in recovering information the government has already demonstrated the ability to recover.
Such cases have never squarely been addressed by the Supreme Court, despite conflicting opinions in the lower courts.
This is unplowed ground. The whole world of encryption – and whether or not it is an analog for a padlock – is legally untested territory. My feeling is that the original situation in which Mr Feldman found himself – supplying the key being tantamount to admitting the data on the drives are his – would be a breach of his Fifth Amendment rights. The new situation – where the authority’s computer expert has cracked the encryption on one drive – is a bit murkier (and therefore more interesting). Mr Feldman claims that, since the State has demonstrated the ability to defeat the encryption in one case, making the State’s case easier (by providing the remaining keys) falls within the penumbra of the Fifth Amendment, if not the core – making the State independently prove guilt.
In the current atmosphere of pandemic governmental overreach, I am inclined to agree with Mr Feldman, in full knowledge of the disgusting nature of the crime with which Mr Feldman is accused.
 F Thorpe, The Federal and State Constitutions, reprinted in H Doc No 357, 59th Congress, 2nd sess, 1891 (1909) (Massachusetts); 4 id at 2455 (New Hampshire); 5 id at 2787 (North Carolina), 3038 (Pennsylvania); 6 id at 3741 (Vermont); 7 id at 3813 (Virginia).
 Amendments were recommended by an Address of a minority of the Pennsylvania convention after they had been voted down as a part of the ratification action, 2 Bernard Schwartz, The Bill of Rights: A Documentary History, pp. 628, 658, 664 (1971), and then the ratifying conventions of Massachusetts, South Carolina, New Hampshire, Virginia, and New York formally took this step.
 Annals of Congress, p. 434 (June 8 1789).
 Id at 753 (August 17 1789).
 For details of this case, see David Kravets, Deadline Looms for Suspect to Decrypt Laptop, or Go Directly to Jail, in Wired, June 4 2013.