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NJ Court Says the Fifth Amendment Doesn't Protect Your Phone From the Police

Illustration for article titled NJ Court Says the Fifth Amendment Doesnt Protect Your Phone From the Police
Photo: Sam Rutherford/Gizmodo

In a tale of an allegedly crooked sheriff caught abusing his power, the New Jersey Supreme Court has ruled that forcing a suspect to unlock their iPhones doesn’t run afoul of the Fifth Amendment.

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The gist of the story, which was first reported by Ars Technica, goes like this: Former Essex County Sheriff Robert Andrews was accused of tipping off a suspect named Quince Lowery—Andrews’ motorcycle club buddy—that he was the subject of a pending police investigation. Andrews allegedly told Lowery over 100+ calls and texts to ditch his cellphone as police were “doing wire taps” and even identified an undercover officer from the Prosecutor’s Office. During the investigation, police obtained warrants for Andrews’ phones, seized said phones, but were then unable to unlock them. Andrews refused to provide the passcodes, citing the Fifth Amendment, the section of the Bill of Rights that protects against self-incrimination. In practice, “pleading the Fifth” usually manifests as a refusal to provide oral testimony during trial; digital evidence’s applicability to those same protections is effectively uncharted Constitutional waters that states have been left to sort out on their own.

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In the wake of the George Floyd protests, a common piece of advice for cop-proofing phones was to disable biometric logins like Face ID and Touch ID in favor of a pin or password. The reasoning was that legal precedent had made it legal for cops to unlock phones using your face or finger—even without your consent—but that they could not compel you to provide a passcode thanks to the Fifth Amendment. (That said, in 2019, a California judge ruled that police couldn’t compel biometric logins, but this doesn’t apply nationwide.) However, the reality is a bit more unsettled. Some state courts, like those in Indiana, Florida, and Wisconsin, have ruled that providing passcodes for smartphones or computers is a violation of the Fifth Amendment. Other courts in Vermont, Colorado, and Massachusetts have ruled the opposite.

In this case, New Jersey’s Supreme Court threw the Fifth Amendment argument out entirely. Part of the issue is that technically speaking, the Fifth Amendment protects you from being “compelled to make a testimonial communication that is incriminating.” What constitutes as “testimony” has tripped up courts across the nation. While it mostly refers to speech, it can also refer to a person’s actions. As Ars Technica points out, if the police don’t definitively know who owns an iPhone they’ve seized and then compel you to unlock said iPhone, it has forced you to reveal that you are the owner (or at least know the passcode)—thereby leading you to unlawfully incriminate yourself. However, there’s also something called a “foregone conclusion exception”: If the police know you own the iPhone and the evidence they will likely find on the phone—as in Andrews’ case—the Fifth Amendment may not apply, and you can be compelled to provide a passcode.

It’s complicated. The gist is you can’t be compelled to use your judgment to provide evidence the government or police may not already know. Whether that applies to the act of unlocking cellphones (or computers, or hard drives) is a big ole question mark. Are the police looking for specific evidence, or are they sneakily trying to get access to your entire phone to fish for information? In this instance, the New Jersey Supreme Court limited police access to Andrews’ phones to Andrews’ calls and texts.

A major problem here is that the United States Supreme Court hasn’t weighed in on whether people can be compelled to provide passcodes or biometric logins. Until it does, state courts will continue to struggle with how to apply old laws to new technology.

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The Andrews case is ongoing, and for now, it’s unclear whether he will file an appeal to the U.S. Supreme Court. While it’s very likely that in this case Andrews deserves some kind of comeuppance, the ruling sets an uneasy precedent. Now, the average New Jerseyan might find that the police have an easier time picking through their digital life.

Consumer tech reporter by day, danger noodle by night. No, I'm not the K-Pop star.

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DISCUSSION

You list Colorado as a state that has ruled that forcing someone to provide a passcode is not a violation of the Fifth Ammendment; and linked to United States vs Ramona Fricosu as a cite. This was a federal and not a state court that made the ruling, which means technically it applies to everyone in the US.

She appealed this to the 10th Circuit Court; but dropped the appeal as pointless when her ex husband provided the PGP password to her laptop to the FBI.

Edit: I knew about the CO case, just looked and the Vermont case was also federal, not state.