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02/08/2020

Orin Kerr: Decryption Originalism
Michael Ramsey

Orin S. Kerr (University of California, Berkeley School of Law) has posted Decryption Originalism: The Lessons of Burr (56 pages) on SSRN.  Here is the abstract:

The Supreme Court is likely to rule soon on how the Fifth Amendment privilege against self-incrimination applies to compelled decryption of a digital device. When the Court rules, the original understanding of the Fifth Amendment may control the outcome. This Article details an extraordinary case that illuminates the original understanding of the privilege and its application to compelled decryption. During the 1807 treason trial of Aaron Burr, with Chief Justice John Marshall presiding, the government asked Burr’s private secretary if he knew the cipher to an encrypted letter Burr had sent to a co-conspirator. Burr’s secretary pled the Fifth, leading to an extensive debate on the meaning of the privilege and an opinion from the Chief Justice.

The Burr dispute presents a remarkable opportunity to unearth the original understanding of the Fifth Amendment and its application to surprisingly modern facts. The lawyers in Burr were celebrated and experienced advocates. The Chief Justice allowed them to argue the Fifth Amendment question in exhaustive detail. And an attorney recorded the entire argument in shorthand, including dozens of legal citations to the specific pages of the authorities the lawyers invoked. The rich materials allow us to reconstruct for the first time precisely how the privilege was understood by leading lawyers and Chief Justice John Marshall soon after the Fifth Amendment’s ratification. The Article presents that reconstruction, and it concludes by applying Burr’s lessons to the modern problem of compelled decryption of digital devices such as cell phones and computers.

(Via Volokh Conspiracy).

Professor Kerr is a major scholar in the field but not predominantly an originalist scholar, so this turn to orignalism is notable.