NJ Justices Ask if Forced Smartphone Unlocking Constitutional
TRENTON -- New Jersey justices waded into a growing national debate whether the Fifth Amendment stops law enforcement from forcing someone to enter a password to unlock an encrypted smartphone. The Supreme Court heard argument Tuesday in State v. Andrews; other state courts have split in similar cases where states argue limiting law enforcement could create a zone of lawlessness. “We’ll reach a tipping point where the U.S. Supreme Court has to step in pretty soon,” Electronic Frontier Foundation senior staff attorney Andrew Crocker told us outside the courtroom.
Two lower New Jersey courts agreed with the state that Fifth Amendment and New Jersey law protections against self-incrimination don’t apply. New Jersey Superior Court found in November 2018 requiring the defendant to give up his password didn’t give the government additional information, thus triggering a “foregone conclusion” exception to the Fifth Amendment.
Jurists now asked about long-term effects of what they decide. Justice Jaynee LaVecchia asked if it could lead to law enforcement jailing people for not revealing passcodes. Chief Justice Stuart Rabner asked if siding against law enforcement would be “telegraphing” to criminals they should get a certain kind of phone because police won’t be able to access it, and if that affects the constitutional question.
Justice Barry Albin challenged the state’s argument the Fifth Amendment doesn’t apply. “You want the defendant to help you prosecute him” by forcing him to divulge his mind’s contents, said Albin. The foregone conclusion exemption has historically applied to corporation or government records, he said: “I don’t see how that applies here.” Rabner resisted the state’s argument entering a password is like giving a blood or a handwriting sample, which aren’t protected. Those don’t seem to involve as much thinking as providing a code, the chief justice said.
Law enforcement wants to execute a lawful search warrant, argued Frank Ducoat, Essex County assistant prosecutor. It wants a “practical” ruling that gives police no more information than they seek. Some justices pressed Ducoat on if there are alternative ways to get the information. The attorney said no: “We wouldn’t be here if we could open the phone.” Ruling for Andrews would send the message that a password-protected smartphone is a “safe haven,” he said.
“Don’t trash the Fifth Amendment because technology is moving forward,” argued attorney Charles Sciarra for appellant Robert Andrews. Other amendments have withstood tech change, he said. No case law supports allowing law enforcement to compel people to spill their mind’s contents, he said. A password is a “very specific sequence” of characters to protect privacy, more like a combination lock than a key to a lockbox, he said. New Jersey has additional protections against self-incrimination, he noted.
It can take “decades” in most cases to crack a password through brute force, argued New Jersey Deputy Attorney General Lila Leonard. The suspect doesn’t have to say the password out loud, just enter it, she said. Searching a phone for specific text messages or images is no more problematic than searching a house for particular objects, she said. Don’t inadvertently create a “safe haven” for child pornography, Leonard warned.
Smartphones contain an “astonishing amount of information” not contemplated when the foregone conclusion exception was created in the 1970s, said Megan Iorio, Electronic Privacy Information Center appellate advocacy counsel. She said a smartphone is an extension of the contents of a user’s mind, and much more complex than a lockbox or combination safe. There are other avenues to getting information that don’t require a person to divulge a passcode, such as seeking the data from third-party providers, testified Crocker for joint amici EFF and the American Civil Liberties Union.
Justice Anne Patterson asked if it's different to require someone to use facial recognition or a fingerprint to unlock a phone. LaVecchia said the difference is that unlike faces or fingerprints, one’s thoughts aren't in the public domain. Sciarra said biometrics aren’t relevant to the case about passwords, but it’s a good debate to have later.
The Indiana Supreme Court heard a smartphone encryption case last year (see 1904180025). A decision could come “any day now,” Crocker told us. Previously, the Massachusetts Supreme Judicial Court sided with law enforcement, while the Pennsylvania Supreme Court supported Fifth Amendment protections, he said. Expect one state’s case to go to the U.S. Supreme Court, he said.