This essay discusses the murkiness in the law regarding the application of the Self-Incrimination Clause as it relates to modern technology of smartphones. It evaluates the pros and cons of a judicial solution to the existing conflict against a legislative solution. Rather than through regulation or statutory reform, the focus will be on the need for a contemporary judicial interpretation of the Self-Incrimination Clause in furtherance of the common law tradition that spawned the first understandings of the Fifth Amendment. Ultimately, this examination will call upon the Supreme Court to craft a modern application of the Self-Incrimination Clause by holding that the foregone conclusion rule should not apply merely to unlocking a person’s smartphone, and that the particularity requirement of search warrants should include with specificity which applications and what information law enforcement is seeking.
Andrew Meena, Conflicting Common Law: Application of the Self-Incrimination Clause as Applied to Smartphone Technology, 14 ConLawNOW 171