Forced Decrypt: 5th Amndt Does Forbid says US State PA Supreme Court

grarpamp grarpamp at gmail.com
Thu Nov 21 19:50:48 PST 2019


https://www.eff.org/deeplinks/2019/11/victory-pennsylvania-supreme-court-rules-police-cant-force-you-tell-them-your
https://www.eff.org/files/2019/11/20/commonwealth_v._davis_-_majority_opinion.pdf
https://www.eff.org/files/2019/11/20/commonwealth_v_davis_-_amicus_brief_00131873xdc3ce.pdf

https://www.eff.org/document/state-v-andrews-eff-aclu-aclu-nj-amicus

https://www.eff.org/deeplinks/2019/02/highest-court-indiana-set-decide-if-you-can-be-forced-unlock-your-phone
https://www.eff.org/files/2019/02/01/brief.pdf

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.


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