The Fifth Amendment right not to incriminate one’s self includes a right to withhold from police a cellphone passcode, contends a brief filed with the U.S. Supreme Court.
The Rutherford Institute, along with the Cordell Institute of Washington University and the Americans for Prosperity Foundation, filed the brief in defense of Robert Andrews, an officer with the Essex County, New Jersey Sheriff’s Office.
“The Fifth Amendment was intended to guard against government attempts to overreach its authority,” said constitutional attorney John W. Whitehead, president of the Rutherford Institute. “Paramount among the rights enshrined in the Fifth Amendment is the right to remain silent and not be forced to assist the government or any of its agents in prosecuting oneself.”
Andrews was accused of passing information about a narcotics investigation to the suspect in the case. Investigators arrested him and seized his iPhones, believing they contained calls, text messages and other information relayed to the suspect about how to avoid prosecution.
However, investigators were unable to unlock Andrews’ phones without his passcode.
“At trial, state prosecutors filed a motion to compel Andrews to divulge the pass codes for his iPhones so that they could access the information stored on the phones,” Rutherford said. “Andrews objected to the motion, arguing that forcing him to divulge the pass codes would violate the guarantee against compelled self-incrimination contained in the Fifth Amendment to the U.S. Constitution.”
The case could set a significant standard for privacy now that the world is in a digital age.
The brief contends the government’s efforts to force individuals to disclose passcodes for their electronic devices violates the Fifth.
A ruling from the New Jersey Supreme Court, the brief argues, is in opposition to the “Supreme Court’s unequivocal recognition that exposing the contents of a cell phone or computer to the government is more harmful to privacy than even the most exhaustive search of a house.”
The trial court admitted the information on Andrews’ phone “might incriminate him.”
But it ruled he could be forced to provide the codes because the court assumed it was a “foregone conclusion” that there was evidence there, and Andrews “had no right to withhold access.”
Andrews appealed to the Supreme Court.
The filing argues the high court should accept the case because lower courts are divided on the issue.
They “not only disagree about how this court’s self-incrimination doctrine should be applied, they also disagree about whether the Fifth Amendment right against self-incrimination prohibits the government from compelling a person to speak, write or otherwise communicate pure testimony of an incriminating nature,” it said.
“This court’s current and historical understanding of the right against self-incrimination has always aligned with its common law origins, under which the Fifth Amendment prohibits the government from subjecting a person to the cruel trilemma of telling the truth and accusing oneself, committing perjury, or declining to answer and being held in contempt,” the filing said.
“There is deep and pervasive confusion among courts at all levels about whether the Fifth Amendment prohibits the government from compelling a person to speak or write incriminating information in the context of digital devices,” the brief said. “Whereas, for example, some courts find there to be only ‘some support for the idea that the written disclosure of [a] password would amount to direct testimony,’ … others insist that ‘[a]t its core,’ this issue is about ‘which vision of the right…prevails: those of the Founders who erred on the side of personal liberty or those who defend state powers to extract testimony and see no problem in ‘merely compel[ling a defendant] to unlock [a] phone by entering the passcode himself.””
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