by L.E. “Ted” Wilson

There is a fascinating constitutional showdown brewing in the U.S. that will have significant implications for how our law enforcement agencies are able to conduct digital investigations. The fundamental question at issue is whether the Fifth Amendment protection against self-incrimination can be lawfully asserted by a criminal defendant as a justification for refusing to provide a law enforcement professional with the password needed to access a personal technology device.

The most common example of how this issue manifests itself is when a police officer wants to search a cell phone or a notebook device as part of a criminal investigation, such as a child pornography investigation. The officer presents a search warrant to a judge to search the content of the device for the contraband, or evidence of an offense. The judge issues the warrant, commanding the officer to search the device, but the device cannot be…