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

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

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.


Comments

Post a Comment

Popular posts from this blog

EFF: No Digital Surveillance of Iranians at the U.S. Border—or Within the U.S.

No Digital Surveillance of Iranians at the U.S. Border—or Within the U.S. Only days into heightened tensions between the United States and Iran, media outlets have published disturbing reports of increased scrutiny of people of Iranian descent at U.S. borders, including in at least one case involving a traveler’s phone. EFF strongly opposes any targeting of people for digital surveillance based on their race, religion, or nationality, at our border and in our interior. And we remind all members of the public to practice surveillance self-defense. Disturbing Reports from the Border On January 5, media outlets reported that more than 60 people of Iranian descent, including U.S. citizens, were held at the border between Canada and Washington state for many hours and questioned about their perceived connections to Iran. U.S. Customs and Border Protection (CBP) denied that it detained or refused entry to Iranians based on their national origin, a claim contested by accounts f
Read more

EFF: Corporate Speech Police Are Not the Answer to Online Hate

Corporate Speech Police Are Not the Answer to Online Hate A coalition of civil rights and public interest groups issued recommendations today on policies they believe Internet intermediaries should adopt to try to address hate online. While there’s much of value in these recommendations, EFF does not and cannot support the full document. Because we deeply respect these organizations, the work they do, and the work we often do together; and because we think the discussion over how to support online expression—including ensuring that some voices aren’t drowned out by harassment or threats—is an important one, we want to explain our position. We agree that online speech is not always pretty—sometimes it’s extremely ugly and causes real world harm. The effects of this kind of speech are often disproportionately felt by communities for whom the Internet has also provided invaluable tools to organize, educate, and connect. Systemic discrimination does not disappear and can even be ampl
Read more

Living on the (IT) Edge: Schneider Electric at HPE Discover 2018

Image
We’re here at HPE Discover 2018 , proudly sponsoring the event and enjoying a jam-packed few days in Las Vegas. The data center industry has experienced tremendous disruption in the last decade. The fourth Industrial Revolution, with its IT/OT convergence, the proliferation of IoT, and insatiable demand for digital connectivity, is creating the opportunity to push the envelope of performance beyond the obvious and create new business value. And there’s no bigger opportunity right now than at the edge. At the same time, these new paradigms are also driving more complexity: companies today are trying to manage a combination of environments, from large centralized data centers on-premises or in the cloud, regional edge data centers, to local edge data centers. We have more data centers, intertwined across more locations, and with more data, than ever before. All of this adds up to promising opportunities on the horizon for our customers – but an equally daunting number of new challenges
Read more