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Pennsylvania Supreme Court Rules Police Can’t Force You to Tell Them Your Password

Published: November 21, 2019 | Print Friendly and PDF

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By Andrew Crocker

The Pennsylvania Supreme Court issued a forceful opinion today holding that the Fifth Amendment to the U.S. Constitution protects individuals from being forced to disclose the passcode to their devices to the police. In a 4-3 decision in Commonwealth v. Davis, the court found that disclosing a password is “testimony” protected by the Fifth Amendment’s privilege against self-incrimination.

EFF filed an amicus brief in Davis, and we were gratified that the court’s opinion closely parallels our arguments. The Fifth Amendment privilege prohibits the government from coercing a confession or forcing a suspect to lead police to incriminating evidence. We argue that unlocking and decrypting a smartphone or computer is the modern equivalent of these forms of self-incrimination.

Crucially, the court held that the narrow “foregone conclusion exception” to the Fifth Amendment does not apply to disclosing passcodes. As described in our brief, this exception applies only when an individual is forced to comply with a subpoena for business records and only when complying with the subpoena does not reveal the “contents of his mind,” as the U.S. Supreme Court put it. (For more on the foregone conclusion exception, see this post on a similar case currently pending in the Indiana Supreme Court.)

The Pennsylvania Supreme Court agreed with EFF. It wrote:

Requiring the Commonwealth to do the heavy lifting, indeed, to shoulder the entire load, in building and bringing a criminal case without a defendant’s assistance may be inconvenient and even difficult; yet, to apply the foregone conclusion rationale in these circumstances would allow the exception to swallow the constitutional privilege. Nevertheless, this constitutional right is firmly grounded in the “realization that the privilege, while sometimes a shelter to the guilty, is often a protection to the innocent.”

This ruling is vital because courts must account for how constitutional rights are affected by changes in technology. We store a wealth of deeply personal information on our electronic devices. The government simply should not put individuals in the no-win situation of choosing between disclosing a password—and turning over everything on these devices—or instead defying a court order to do so.

At least two other state supreme courts, in Indiana and New Jersey, are considering similar cases. EFF is participating in both of those cases as amicus along with the ACLU. With the victory in Pennsylvania, and several other courts set to weigh in, there’s a significant chance the U.S. Supreme Court will have the last word. We hope that like the Pennsylvania court, the Supreme Court recognizes just how fundamental the Fifth Amendment right is.

Andrew is a senior staff attorney on the Electronic Frontier Foundation’s civil liberties team. He focuses on EFF’s national security and privacy docket, as well as the Coders’ Rights Project. While in law school, Andrew worked at the Berkman Center for Internet and Society, the American Civil Liberties Union’s Speech, Privacy, and Technology Project, and the Center for Democracy and Technology. He received his undergraduate and law degrees from Harvard University and an M.F.A. in creative writing from New York University. His interests include Boggle and donuts.

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