PENNSYLVANIA SUPREME COURT RULES POLICE CAN’T FORCE YOU TO TELL THEM YOUR PASSWORD | WHAT REALLY HAPPENED

PENNSYLVANIA SUPREME COURT RULES POLICE CAN’T FORCE YOU TO TELL THEM YOUR PASSWORD

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.)

Webmaster's Commentary: 

Good on the Pennsylvania Supreme Court for this decision; as further challenges of this go on, perhaps as high as the Supreme Court, I hope that their logic, in this decision-making, will be allowed to stand.

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