Supreme Court Asked to Consider if Fifth Amendment Protects Passwords

Illustration for article titled Supreme Court Asked to Consider if Fifth Amendment Protects Passwords
Photo: GABRIEL BOUYS/AFP (Getty Images)

The American Civil Liberties Union and the Electronic Frontier Foundation, two of the nation’s largest defenders of digital privacy, are asking the Supreme Court to stop criminal prosecutors from forcing people to unlock their own cellphones, under the argument that the U.S. Constitution’s protection against self-incrimination applies equally to passwords.

While the debate is hardly new, it’s yet to be considered by the country’s highest court.

As long as there have been cellphones, police have sought to access their contents, hoping to find a digital trace that could link a suspect to a crime. But as the technology has improved, it has also given police ever-increasing access to the most intimate details of a person’s life. It was inevitable then that the Supreme Court would be forced to consider how the rights of individuals caught up in criminal proceedings apply to the ubiquitous device.

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Just as cellphones have evolved to serve numerous functions beyond communication, the technology that protects them from undesirable users gets stronger each passing year. In many cases, police now lack the capability to unlock phones without the consent of their owner, or expensive hacking tools regularly rendered obsolete. This conundrum often leads authorities to seek court orders that compel suspects to unlock their own devices, which the privacy advocates contend is a violation of their rights.

The basic argument against these orders is simple: Compelling someone to give up the password to their phone is essentially no different than forcing them to verbally provide incriminating details about its contents. The Fifth Amendment, the courts have long held, protects a person from being forced to make statements that are self-incriminating or may otherwise lead investigators to material that’s incriminating.

Because of the ways in which laws and legal precedents are often literally interpreted, many of the arguments against the compelled disclosure of passwords center on the fact that a suspect is being forced to verbally communicate something that may be used against them. In these situations, refusing to comply can lead to additional charges, such as contempt, and even terms of imprisonment.

The case before the Supreme Court is that of Robert Andrews, a former law enforcement officer indicted for allegedly tipping off a subject in a narcotics investigation. In 2017, prosecutors in New Jersey filed a motion to compel Andrews to disclose the passcodes of two iPhones seized by investigators. He refused.

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The reasoning behind the various judgements that led his case to the Supreme Court vary somewhat, but they largely center on the fact that prosecutors claim to already be in possession of the alleged evidence just by holding Andrews’ phones. A trial court called the production of their contents a “foregone conclusion,” which is a recognized, limited exception to the right against self-incrimination, and the New Jersey Supreme Court later found that the passwords themselves were of “minimal testimonial value.”

The state had, in other words, already done enough to prove that the evidence was real. The actual words, or digits, they sought to force out of Andrews’ mouth are immaterial to the case against him.

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On that, not everyone agrees.

In a petition Friday, the ACLU and EFF lay out an array of arguments against these rulings—asserting that, while the order to search Andrews’ phones is not itself unlawful, the means by which investigators are trying to carry out that search would violate his Fifth Amendment rights. This hinges on the fact that by giving up his passwords, Andrews is being forced to “disclose the contents of his own mind,” which the court has previously found is out of the question.

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Because the case is now before the Supreme Court, case law generated outside New Jersey carries new weight. The petition cites a 2019 ruling in Pennsylvania that reasoned a defendant asked to produce a password also would be forced to recall the actual contents of the files it protects. The court ruled that the “act of production carries with it the implied factual assertions that will be used to incriminate” a suspect.

“The Constitution is clear: no one ‘shall be compelled in any criminal case to be a witness against himself,’” Andrew Crocker, senior staff attorney at the EFF, said. “When law enforcement requires you to reveal your passcodes, they force you to be a witness in your own criminal prosecution. The Supreme Court should take this case to settle this critical question about digital privacy and self-incrimination.”

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According to the Wall Street Journal, which first reported the petition, the case, which is being prosecuted by Essex County Prosecutor’s Office, may be heard in the coming months.

Senior Reporter, Privacy & Security

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DISCUSSION

Seems like it should be straightforward that they are protected by the 5th. I don't buy the "Forgone conclusion" argument, because if that is true then you have no need to get the password in the first place.