Password NOT Protected: A Foregone Conclusion

In a matter involving a question of first impression, the New Jersey Supreme Court has held that forcing a defendant to reveal iPhone passwords  for properly seized phones does not run afoul of the state or United States Constitutions. 

From the court’s syllabus

The Court considers whether a court order requiring a criminal defendant to disclose the passcodes to his passcode-protected cellphones violates the Self Incrimination Clause of the Fifth Amendment to the United States Constitution or New Jersey’s common law or statutory protections against self-incrimination.

The target of a State narcotics investigation, Quincy Lowery, advised detectives that defendant Robert Andrews, a former Essex County Sheriff’s Officer, had provided him with information about the investigation and advice to avoid criminal exposure. The State obtained an arrest warrant for defendant, who was later released, and search warrants for defendant’s iPhones, which were seized.

The State moved to compel disclosure of the passwords to two iPhones

The trial court rejected Andrews’s arguments but limited access to Andrews’s cellphones “to that which is contained within (1) the ‘Phone’ icon and application on Andrews’s two iPhones, and (2) the ‘Messages’ icon and/or text messaging applications used by Andrews during his communications with Lowery.” The court also ordered that the search “be performed by the State, in camera, in the presence of Andrews’s defense counsel and the [c]ourt,” with the court “review[ing] the PIN or passcode prior to its disclosure to the State.” The Appellate Division affirmed. 457 N.J. Super. 14, 18 (App. Div. 2018). The Court granted leave to appeal. 237 N.J. 572 (2019).

The court agreed

Here, the State correctly asserts that the lawfully issued search warrants — the sufficiency of which Andrews does not challenge — give it the right to the cellphones’ purportedly incriminating contents as specified in the trial court’s order. And neither those contents — which are voluntary, not compelled, communications — nor the phones themselves — which are physical objects, not testimonial communications — are protected by the privilege against self-incrimination. Therefore, production of the cellphones and their contents is not barred. But access to the cellphones’ contents depends here upon entry of their passcodes. Communicating or entering a passcode requires facts contained within the holder’s mind. It is a testimonial act of production…

Based on the record in this case, compelled production of the passcodes falls within the foregone conclusion exception. The State’s demonstration of the passcodes’ existence, Andrews’s previous possession and operation of the cellphones, and the passcodes’ self-authenticating nature render the issue here one of surrender, not testimony, and the exception thus applies. Therefore, the Fifth Amendment does not protect Andrews from compelled disclosure of the passcodes to his cellphones. The Court would reach the same conclusion if it viewed the analysis to encompass the phones’ contents. The search warrants and record evidence of the particular content that the State knew the phones contained provide ample support for that determination. This was no fishing expedition.

The court majority reaches the same result under state law.

Justice LaVecchia, dissented (quoting from the opinion)

In a world where the right to privacy is constantly shrinking, the Constitution provides shelter to our innermost thoughts — the contents of our minds — from the prying eyes of the government. The right of individuals to be free from the forced disclosure of the contents of their minds to assist law enforcement in a criminal investigation, until now, has been an inviolate principle of our law, protected by the Fifth Amendment and our state common law. No United States Supreme Court case presently requires otherwise. No case from this Court has held otherwise. That protection deserves utmost respect and should not be lessened to authorize courts to compel a defendant to reveal the passcode to a smartphone so law enforcement can access its secured contents.

We are at a crossroads in our law. Will we allow law enforcement — and our courts as their collaborators — to compel a defendant to disgorge undisclosed private thoughts — presumably memorized numbers or letters — so that the government can obtain access to encrypted smartphones? In my view, compelling the disclosure of a person’s mental thoughts is anathema to fundamental principles under our Constitution and state common law.

The Court’s outcome deviates from steadfast past principles protective of a defendant’s personal autonomy in the face of governmental compulsion in a criminal matter. Those same principles should apply even in the face of the latest challenge presented by new technology. Respectfully, I dissent from the course the Court now takes.

…This Court has never before permitted law enforcement to compel from a defendant’s lips inner thoughts to assist in his own prosecution. I cannot join in taking our state law in that direction. Therefore, for the same reasons that I would not extend federal law to require what the Supreme Court has not expressly held, so too I would not turn our jurisprudence from the guiding principles it has followed to date.

This intrusive use of compelled cooperation forcing self-incrimination through disclosure of the contents of one’s mind is not consistent with our law. It should be rejected as a step backwards from the storied history in this State of protective law concerning personal autonomy and the privacy of one’s inner thoughts with respect to the privilege against self-incrimination.

The oral arguments can be accessed on the court’s opinions page. (Mike Frisch)