CHAPTER 12 Compelled Production of Cloud Computing Data: Fifth Amendment Concerns
Matthew P. Breuer and James P. Martin
Technological advancements frequently create situations that are not easily addressed by the historical interpretations of basic constitutional law. One of the many undesired consequences of this incompatibility is the fact that inconsistent rulings can be rendered in various jurisdictions with regard to Fifth Amendment rights, which states that:
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 offense 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.1
Courts have been charged with the task of finding the correct balance between supporting an individual’s Fifth Amendment rights and allowing government investigations to proceed for the common good. This has proved to be quite challenging. For example, courts have struggled with the challenge of the application of concepts such as the “foregone conclusion” doctrine, which was originally intended for act-of-production issues for paper ...