201912.02
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Police Want Your Computer Password: Does the Fifth Amendment Apply?

The average digital consumer owns 3.23 connected devices, according to marketing research. So, what happens when police ask for your password and providing it would implicate you in a crime? Can you exercise your Fifth Amendment right against self-incrimination and refuse to disclose it? In a victory for privacy rights, the Supreme Court of Pennsylvania recently said “yes.”

Child Pornography Charges

In Commonwealth v. Davis, on July 14, 2014, agents of the Office of Attorney General (OAG), as part of their investigation of the electronic dissemination of child pornography, discovered that a computer at an identified Internet Protocol (IP) address registered with Comcast was repeatedly using a peer-to-peer file-sharing network to share child pornography. The OAG obtained a court order to compel Comcast to provide subscriber information, which led them to the defendant, who had prior child pornography convictions. When they examined his computer pursuant to a search warrant, they discovered that the hard drive had been “wiped,” removing data entirely or rendering it unreadable.

Subsequently, on Oct. 4, 2015, the OAG identified a different child pornography video that was shared with a different IP address utilizing the same peer-to-peer server. A subpoena to Comcast again produced the defendant’s name and contact information. The OAG executed another search warrant at the defendant’s apartment and discovered a single computer. After being read his Miranda rights, the defendant informed the agents that he lived alone, that he was the sole user of the computer, and that he used hardwired internet services which are password protected and, thus, not accessible by the public, such as through Wi-Fi.

When agents asked the defendant for the password to his computer, the defendant refused to reveal it. He subsequently admitted to watching various pornographic movies involving children. When requested again to provide his password, the defendant responded: “It’s 64 characters and why would I give that to you? We both know what’s on there. It’s only going to hurt me. No … way I’m going to give it to you.”

In later conversations with law enforcement the defendant said that providing his password would be like “putting a gun to his head and pulling the trigger” and that “he would die in jail before he could ever remember the password.”

The defendant was charged with disseminating child pornography and criminal use of a communications facility.

The Commonwealth sought an order from the trial court to compel the defendant to reveal his password. The defendant argued that such an order would violate his Fifth Amendment right against self-incrimination, which he had invoked. The trial court ruled that the defendant had to reveal his password, and the defendant appealed to the Superior Court of Pennsylvania, which affirmed.

The defendant next appealed to the Pennsylvania Supreme Court.

PA Supreme Court Decision

The Supreme Court reversed the lower courts’ rulings, finding that forcing the defendant to disclose his passwords was the equivalent of forcing him to testify against himself in violation of the Fifth Amendment. The court wrote:

We find that the Commonwealth is seeking the electronic equivalent to a combination to a wall safe. … The compelled production of the computer password demands the recall of the contents of [the defendant’s] mind, and the act of production carries with it the implied factual assertions that will be used to incriminate him.

In its decision, the court also addressed the distinction between testimonial evidence and evidence that is physically produced, such as a handwriting sample, blood draw, or a voice exemplar. The court found that when the government compels the defendant to use the “contents of his own mind” in explicitly or implicitly communicating a fact, the production is considered to be testimonial and is afforded Fifth Amendment protection. However, where the government compels a physical act, such production is not testimonial, and the Fifth Amendment privilege is not recognized.

The court additionally addressed the “foregone conclusion” doctrine, which provides that the Fifth Amendment privilege does not shield information that law enforcement would inevitably obtain during their investigation. Noting that the doctrine is a “narrow” exception to the Fifth Amendment, the court held that it is inapplicable to compel the disclosure of passwords and thus did not apply in this instance.

Conclusion

The defendant will not have to reveal his password.

We remind our readers that if you are under investigation or charged with a crime, you are entitled to exercise your constitutional rights. We recommend that you consult with a qualified criminal defense attorney before providing any information to police ― including the password to your computer or other electronic devices.