Court finds Fifth Amendment protects smartphone passwords

The Fifth Amendment protects individuals from being compelled by the government to criminally incriminate themselves, stating in no uncertain terms:

“No person . . . shall be compelled in any criminal case to be a witness against himself.”

As discussed in a previous post, the Fifth Amendment covers encryption of computers when the encryption “key” is a password since compelling the production of a password requires a defendant to reveal “the contents of [his] mind,” which is a testimonial act, forcing the defendant to be witness against himself. See United States v. Doe (In re Grand Jury Subpoena Duces Tecum), 670 F.3d 1335, 1345 (11th Cir. 2012).

A court recently extended this doctrine to encrypted smartphones. In SEC v. Huang, the U.S. District Court for the Eastern District of Pennsylvania rejected the SEC’s attempt to compel the production of a password to decrypt a smartphone.

There does not seem to be a principled distinction between computer passwords, which have readily been found to be protected, and smartphone passwords, which are just smaller computers. Rather, what is interesting about this decision is the court’s application of the “foregone conclusion” exception to the Fifth amendment protection against self-incrimination.

The foregone conclusion exception to the Fifth Amendment provides the rule against compelling self-incrimination can be overcome if the testimonial information protected is a foregone conclusion. That is, “where the location, existence, and authenticity of the purported evidence is known with reasonable particularity, the contents of the individual’s mind are not used against him, and therefore no Fifth Amendment protection is available.” Doe, 670 F.3d at 1344 (emphasis added).

While in Huang, based on the particular circumstances in the case, the SEC could certainly demonstrate the defendant was the sole owner of the phone, the court found that the SEC did not indicate with “reasonable particularity” the “existence” of any of the requested documents actually existing on the smartphones. And therefore the court found that the foregone conclusion doctrine did not apply.