December 14th, 2017

Self-Incrimination Denied as Court Compels Computer Passwords

Case Sensitive:  The Superior Court chips away at the Fifth Amendment right against self-incrimination by compelling production of defendants’ computer passwords. In this instance, case sensitivity has nothing to do with which letters you forgot you capitalized in your password, but what the police already know when they request a Court compel you to provide your password to them. In a case of first impression, the Pennsylvania Superior Court has ruled that an individual is compelled to provide his computer’s password, holding that his Fifth Amendment right against self-incrimination did not apply under the particular factual circumstances.

The Fifth Amendment generally precludes a person to be compelled in any criminal case to be a witness against himself. The question faced by the Superior Court was whether providing a password to an encrypted device to the investigating police officers was tantamount to providing incriminating testimony against himself. In the case published on November 30, 2017, the defendant exercised his right to remain silent and not provide police officers his password, fearing that doing so would lead the police officers to direct evidence of his crimes.

The longstanding rule has been that compelling an individual to disclose a product of one’s mind was unconstitutional. Take for example a locked safe; if the safe was unlocked by a key, the state could compel a defendant to produce the key, since it was merely a physical act, not testimony. However, if that locked safe was protected by a combination lock, the state could not compel a person to give that combination to the police since it was a testimonial act that could incriminate a person. (Neither way prevented the police officer from cutting or blasting the safe open upon appropriate order from the Court.)

In this case, the Superior Court found that the “foregone conclusion” doctrine applied. Under that doctrine, the Superior Court reasoned, an act of production does not involve testimonial communication where the facts conveyed already are known to the government, such that the individual adds little or nothing to the sum total of the Government’s information. Here, the Superior Court found that the State Police, through their investigation and testimony, already knew what was on the computer, believing that there was high probability of the existence of criminal material on the computer. The Court held that the defendant’s password was not testimonial in nature and his Fifth Amendment right against self-incrimination would not be violated.

The defendant has already indicated his intention to appeal the decision to the Pennsylvania Supreme Court. The Pittsburgh Post-Gazette elicited commentary from the American Civil Liberties Union. The ACLU stated that it believes that forcing a defendant to “divulge the contents of his own mind, which will result in the government finding incriminating information, is problematic. The ACLU believes the Fifth Amendment should protect people’s rights to not answer questions about the passwords on their devices.”

*The Superior Court’s opinion does not necessarily reflect the views of the author. The case is Commonwealth v. Davis, 2017 PA Super 376.

Attorney Michael J. Blum is a member of the Gross McGinley litigation team, devoting a portion of his practice to criminal law.

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