Criminal defense lawyers, and the ACLU, say passcodes are protected by the Fifth Amendment; prosecutors disagree.
Two civil-liberties groups are asking the U.S. Supreme Court to rule on an increasingly relevant digital-privacy question: Do Americans have a constitutional right to keep their passwords and passcodes secret?
It’s a thorny legal issue, and one that is unsettled in the U.S., according to lawyers at the American Civil Liberties Union and the Electronic Frontier Foundation, who on Thursday filed a petition with the Supreme Court asking it to decide the matter once and for all.
The initiative is the latest twist in a tug of war between technology companies, which have radically increased the security of their products over the past decade, and law-enforcement authorities, who have increasingly relied on digital evidence to make their cases.
Five years ago, the Justice Department tried to compel Apple to develop a way for law enforcement to access locked iPhones, but it later abandoned the quest. Investigators currently rely on private companies that essentially hack into the phones as a way to uncover the data inside.
Most states haven’t decided the password matter. So while U.S. law is clear that the police can’t force suspects to divulge the combination to a safe, for example, that’s not the case when it comes to an iPhone passcode. It’s ambiguous almost everywhere.
And the state rulings are contradictory. In Pennsylvania, the State Supreme Court has decided that law enforcement cannot force you to divulge a passcode. But the New Jersey State Supreme Court ruled in the opposite direction in August in a case involving a Newark Sheriff’s officer named Robert Andrews.
In 2016, Mr. Andrews was charged with tipping off members of a narcotics ring with information about an investigation. Police wanted access to two of Mr. Andrews’s iPhones, but he refused to hand over his passcodes.
Mr. Andrews, who maintains his innocence, argued that he has no obligation to give investigators access to the complete contents of his phones–which might contain private or embarrassing material. Why should the Government have access to all of that information?
In their petition, Mr. Andrews, the EFF and the ACLU argue that Mr. Andrews’s passcodes are protected by the Fifth Amendment and that when suspects are compelled to provide a passcode, they are essentially being forced to provide testimony against themselves.
The Essex County Prosecutor’s Office, which is prosecuting Mr. Andrews, says the New Jersey Supreme Court made the right decision. The prosecutor argues that access to text messages and other cellphone data, obtained with a search warrant and under the scrutiny of a judge, should be fair game for criminal prosecutions.
So far, the Ohio cases that I’ve come across have followed the New Jersey Rational. The Court’s have held that by producing the passcodes, the defendant is not implicitly conveying any information the State does not already possess. The defendant is not telling the government something it does not already know. Therefore, the implicit facts conveyed by the act of producing the passcodes is a “foregone conclusion” and compelled disclosure of the passcodes does not violate a defendant’s Fifth Amendment right against self-incrimination.
As this is a novel issue in the State of Ohio, it is still going to be a matter of first impression in many jurisdictions. In other words, the issue is far from being settled. The Supreme Court could decide to hear the case within the next few months. If they were to rule, it would settle the matter once and for all. That’s what Ohio needs.
The Bottom Line: you have an absolute, fundamental expectation of privacy in your personal mobile device. Protect it! If you are faced with this conundrum, insist that you have an opportunity to speak with a lawyer that is an expert on search and seizure issues. Never voluntarily consent to the search of your private device. If the Government wants to search your phone, make them satisfy the requisite legal standard first. If you have any questions about this issue, please do not hesitate to call attorney Scott Rubenstein: (513) 260-2099. You can reach me 24/7.