Investigators seized the Microsoft Surface Pro laptop on a search warrant earlier this year, but claim to have been unable to access its hard drive. The judge in the case ordered the defendant Guy Reffitt, who is facing five federal charges including bringing a handgun to the riot and obstruction of justice, to sit in front of the laptop and unlock it via face recognition. Reffitt, a member of the far-right Texas Three Percenter militia, allegedly took part in the failed attempt to disrupt Congressional certification of Joe Biden’s victory in the 2020 elections on behalf of Donald Trump, and later threatened to execute his daughter and son as “traitors” if they turned him in to authorities.
According to CNN, Reffitt’s lawyer confirmed that he was taken to unlock the laptop immediately after the hearing concluded and investigators now have access to its contents. FBI agents told the court they were looking for 6 gigabytes of footage from Reffitt’s helmet camera that they believed was likely transferred to the laptop. The Dallas Morning News reported investigators claimed they had determined Reffitt had deleted three video files from the camera, including two titled “DC,” and thus the footage was unavailable via other methods.
Reffitt’s defense team had argued in turn that the original search warrant had expired, as well as that he had forgotten whether the laptop had a password and wouldn’t remember it if there was. According to the Morning News, his lawyer, William Welch, had conceded that “an attempt to biometrically unlock might be appropriate.”
Courts have long issued contradictory rulings on whether forced device unlocks violate the Fifth Amendment right against self-incrimination. According to Ars Technica, federal courts in Indiana, Pennsylvania, Vermont, and Colorado (and New Jersey), as well as state courts in Virginia and Massachusetts, have all ruled that suspects can be forced to unlock phones. However, federal courts in Wisconsin and Pennsylvania, as well as a state court in Florida, have ruled the opposite. The legalities surrounding biometric security, which in this case required merely that the suspect be placed in front of the device rather than provide login details, are even murkier. A federal court in California ruled in 2019 that investigators can’t compel a suspect to unlock a device with face recognition or a fingerprint scan, finding it identical to a password.
Ultimately, as much of the relevant Fifth Amendment precedent was set in the pre-digital era, the constitutionality of compelled device decryptions will have to be settled in a future Supreme Court case.
“As the court here noted, requiring a defendant to expose his face to unlock a computer can be lawful, and is not far removed from other procedures that are now routinely approved by courts, with proper justification: standing in a lineup, submitting a handwriting or voice exemplar, or submitting a blood or DNA sample,” CNN senior legal analyst Elie Honig wrote. He added that judges considering such orders must weigh the tension “between respecting a defendant’s privacy and other rights on the one hand, and enabling prosecutors to obtain potentially crucial evidence with minimal intrusion on the defendant’s rights, on the other.”
Reffitt has remained defiant after his arrest and indictment. A jailhouse letter obtained by ProPublica and identified as written by him expressed no remorse and argued the Jan. 6 riots were “nothing short of a satirical way to overthrow a government. If overthrow was the quest, it would have no doubt been overthrown.” Reffitt’s letter also argued there was no coordinated plan on Jan. 6 and attributed the violence to “isolated overly emotional individuals.”
However, Reffitt’s letter also threatened that the insurrection was a warning “The people clearly are not happy.” Other evidence in the case included a recording of a Zoom meeting held between Reffitt and two other militia members four days after the siege, which prosecutors said depicted him threatening additional attacks on “mainstream media,” “Silicon Valley,” and “Big Tech.” Prosecutors pointed to one specific plan discussed on the call, in which Reffitt suggested sniping and disabling a generator at a social media firm’s server facility near his home in Wylie, Dallas, which would supposedly disrupt its operations.
If convicted, Reffitt could face a maximum sentence of decades in prison.
Trump remains broadly popular with Republicans after his disastrous presidency, and members of the GOP in Congress have continued to downplay the events of Jan. 6 and interfere with their colleagues’ inquiries into the riots. The Republican-controlled Senate acquitted Trump in his record-setting two impeachment trials, the second of which focused on his incitement of the insurrection. This week, Republicans in the House effectively refused to participate in a 13-member panel convened by Majority Leader Nancy Pelosi to investigate the incidents.