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Police Can’t Demand You Reveal Your Phone Passcode and Then Tell a Jury You Refused:
The Utah Supreme Court is the latest stop in EFF’s roving campaign to establish your Fifth Amendment right to refuse to provide your password to law enforcement. Yesterday, along with the ACLU, we filed an amicus brief in State v. Valdez, arguing that the constitutional privilege against self-incrimination prevents the police from forcing suspects to reveal the contents of their minds. That includes revealing a memorized passcode or directly entering the passcode to unlock a device.
In Valdez, the defendant was charged with kidnapping his ex-girlfriend after arranging a meeting under false pretenses. During his arrest, police found a cell phone in Valdez’s pocket that they wanted to search for evidence that he set up the meeting, but Valdez refused to tell them the passcode. Unlike many other cases raising these issues, however, the police didn’t bother seeking a court order to compel Valdez to reveal his passcode. Instead, during trial, the prosecution offered testimony and argument about his refusal. The defense argued that this violated the defendant’s Fifth Amendment right to remain silent, which also prevents the state from commenting on his silence. The court of appeals agreed, and now the state has appealed to the Utah Supreme Court.
As we write in the brief:
The State cannot compel a suspect to recall and share information that exists only in his mind. The realities of the digital age only magnify the concerns that animate the Fifth Amendment’s protections. In accordance with these principles, the Court of Appeals held that communicating a memorized passcode is testimonial, and thus the State’s use at trial of Mr. Valdez’s refusal to do so violated his privilege against self-incrimination. Despite the modern technological context, this case turns on one of the most fundamental protections in our constitutional system: an accused person’s ability to exercise his Fifth Amendment rights without having his silence used against him. The Court of Appeals’ decision below rightly rejected the State’s circumvention of this protection. This Court should uphold that decision and extend that protection to all Utahns.
Protecting these fundamental rights is only more important as we also fight to keep automated surveillance that would compromise our security and privacy off our devices. We’ll await a decision on this important issue from the Utah Supreme Court.
Put the $5 wrench away, corporal.
(Score: 2) by Rich on Monday November 22 2021, @09:44AM (2 children)
Um... Wouldn't about any information (or even the absence of such information!) about a cellphone found with a defendant being among the evidence give away whether the defendant has refused to unlock it or not? I'm curious as to what wording about a phone could satisfy the supreme court's order in a way that jurors wouldn't be able to figure it out.
(Score: 3, Insightful) by https on Monday November 22 2021, @04:32PM (1 child)
Nope.
Even supposing unlimited access to a phone, there's the possibility that there is no actual evidence on the phone - even if the suspect were actually guilty. That ploy won't fool everyone on a jury.
Quite a bit of information on and about a cell phone can be had by... get this... working [cue horrified gasps]. If there's enough evidence that there's even more evidence on the phone, then there's enough evidence to apply for a warrant. I'm sure the phone company and manufacturer and tindr and so on would be happy to comply with a legally issued warrant.
Oh, is there other potential evidence only on the phone itself? Boo hoo. The entire point of the 5th is that it's the government's work, not yours, to prosecute you.
Offended and laughing about it.
(Score: 2) by Runaway1956 on Tuesday November 23 2021, @03:44PM
On the one hand, sane, rational people would not key their crimes into an electronic device, to be found later by random fool scrolling through messages and apps.
Then again, there seem to be fewer and fewer sane, rational people in the world. People use their phones to post bowel movements to Facebook and Twitter. That is neither sane, nor rational.