Does the Fifth Amendment privilege against self-incrimination prevent the government from forcing a defendant to unlock their cellphone? That’s the question at issue in People v. Sneed, a recent case brought before the Illinois Supreme Court, which found in favor of the state.
This ruling is a blow to Fifth Amendment protections in the digital age and an interpretation that cannot be sustained if we are to properly extend constitutional protections to ever-evolving technology.
In an amicus brief before the court, the American Civil Liberties Union aptly laid out the arguments against compelling passwords from the accused. Fifth Amendment protections against self-incrimination, they point out, derive from the founders’ fears of an American “Star Chamber,” the English judicial body that became synonymous with oppressive interrogation tactics and a lack of due process.
Drawing on this foundation, the American legal system has largely supported the notion that “the State cannot compel a suspect to assist in his own prosecution through recall and use of information that exists only in his mind.” To do so would impose a “cruel trilemma” on a defendant who would face an impossible choice: perjury, self-incrimination, or contempt of court.
As the ACLU points out, numerous high courts (including Indiana and Pennsylvania) have found that password disclosure constitutes testimony because it draws from “the contents of one’s mind.” Yet courts in New Jersey and Massachusetts have sided with Illinois, presenting a significant conflict of law in the ongoing effort to adapt constitutional precepts to our changing society.
In finding for the state and forcing the defendant, Sneed, to unlock his cellphone, the Illinois Supreme Court drew on a somewhat obscure legal exception to the Fifth Amendment right against self-incriminating testimony known as the “foregone conclusion” doctrine. That exception, which the Supreme Court of the United States has applied only once before, holds that producing a password is not testimonial when the government can show, with reasonable particularity, that it already has knowledge of the evidence it seeks, that the evidence was under control of the defendant, and that the evidence is authentic. The idea is that the act of producing a password has little testimonial value in and of itself.
The court misapplied that doctrine here, placing the focus on the password rather than the contents of Sneed’s cellphone.
The court drew on precedents that probable cause justifies the intrusion: “Any information that may be found on the phone after it is unlocked is irrelevant, and we conclude that the proper focus is on the passcode.”
But probable cause does not constitute evidentiary certainty. And, in applying its analysis to passcodes rather than the contents of a safe or lockbox or cellphone, the court ignores that the Supreme Court of the United States’ use of this exception in Fisher v. United States (1976) depended on a specific, narrow set of facts. There, the analysis focused on the production of business documents already proven to exist – not on a passcode.
Allowing the “foregone conclusion” exception to apply to testimonial production of cellphone passwords opens the door to forcible government snooping across the vast scope of our digital lives. Gaining access to someone’s cellphone can reveal anything and everything about that person – including the most intimate details of a life.
As the ACLU put it:
“Locked phones and laptops may impose obstacles to law enforcement in particular cases. So do window shades. It is sometimes true that constitutional protections interfere with law enforcement investigations.”
Until the Supreme Court of the United States resolves this issue, our Fifth Amendment rights in the digital age remain in doubt.