A suspect cannot be compelled to reveal a password
to a personal device. The Pennsylvania Supreme Court
held that the Fifth Amendment right against self-incrimination
allows a suspect to withhold the password to his personal
device.
The case concerned a suspect in a child-pornography investigation
who refused to provide the investigators his 64-characters password
to his personal computer. The Supreme Court turned the lower
court’s decision that applied the “foregone
conclusion” exception, according to which protections against
self-incrimination don’t apply when the government already
knows of the existence, location, and content of the sought-after
material.
Whereas the lower court said the password was tantamount to a key
or other tangible property and did not reveal the
“contents” of the defendant’s mind, the Supreme
Court stated that a disclosure of a password to a computer, is
testimonial in its nature. The Supreme Court explained that one
cannot reveal a passcode without revealing the contents of
one’s mind, as a password to a computer is, by its nature,
intentionally personalized and so unique as to accomplish its
intended purpose―keeping information contained therein
confidential and insulated from discovery.
The Supreme Court concluded that in this case, the investigators
were seeking the password, not as an end, but as a pathway to the
files being withheld. As such, the compelled production of the
computer’s password demands the recall of the contents of the
suspect’s mind, that will be used to incriminate him; and is
thus testimonial in nature and protected under the Fifth Amendment
to the US Constitution.
CLICK HERE to read the Pennsylvania
Supreme Court’s decision.
Random searches of international travels’ devices
violate the Fourth Amendment. The Federal District
Court of Massachusetts has ruled that random searches of
international travelers’ phones and computers by the
government are unconstitutional and violate the fourth amendment,
unless the government authorities have a specific suspicion to
allow the search.
The case was brought by the American Civil Liberties Union and
Electronic Frontier Foundation on behalf of 11 travelers. The court
ruled that both of the current random searches by the government,
the non-cursory searches and seizure of electronic devices, which
were described as basic and advanced, as presently defined, do not
require reasonable suspicion that the devices contain contraband
for both such classes of searches, and that without such reasonable
suspicion, said searches violate the Fourth Amendment.
CLICK HERE to read the Massachusetts
Federal District Court’s full decision.
This article was published in the Internet, Cyber and Copyright Group’s November 2019 Newsletter.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
