Suspects Can Be Forced to Provide Smartphone Passcodes, Rules New Jersey Supreme Court

[MacRumors]

Compelling a suspect to unlock a smartphone doesn't violate Fifth Amendment rights, New Jersey's Supreme Court ruled today (via NorthJersey.com), adding a new argument to the ongoing debate on whether those arrested can be forced to unlock their devices with biometrics or passcodes.

Courts around the United States have been split on the issue, with some determining that suspects cannot be forced to unlock an iPhone, while others have said it's not a rights violation. Most of these arguments have focused on biometric smartphone unlocking methods like Touch ID and Face ID, but New Jersey says that a criminal defendant can be forced to provide a passcode.

In the NJ case, prosecutors wanted access to two iPhones owned by former Essex County sheriff Robert Andrews, accused of secretly working with a street gang. Andrews argued that requiring him to provide a passcode would be a violation of his Fifth Amendment rights against self-incrimination, but the court rejected the argument and said that it only applies when the accused is "compelled to make a testimonial communication that is incriminating."

Fifth Amendment rights do not protect suspects from producing documents to use as evidence in cases, and the court considered the iPhone's text and phone call content to be documents.

The court, which was split on the decision 4 to 3, said that even if the passcodes were considered testimony, there was already evidence that there were texts and telephone exchanges between the sheriff and an alleged drug dealer, enacting a "foregone conclusion exception" to the Fifth Amendment because the state already knows about the texts. By providing the passcodes, Andrews would not be providing information the government is not already aware of. The full ruling with additional context is available from the NJ courts website [PDF].

Based on the record in this case, compelled production of the passcodes falls within the foregone conclusion exception. The State's demonstration of the passcodes' existence, Andrews's previous possession and operation of the cellphones, and the passcodes' self-authenticating nature render the issue here one of surrender, not testimony, and the exception thus applies. Therefore, the Fifth Amendment does not protect Andrews from compelled disclosure of the passcodes to his cellphones. The Court would reach the same conclusion if it viewed the analysis to encompass the phones' contents. The search warrants and record evidence of the particular content that the State knew the phones contained provide ample support for that determination.

Andrews' attorney, Charles Sciarra, called the court's ruling a "major defeat to the United States Constitution."

"Forget alleged criminal conduct: It's time to rethink whether you should keep anything simply private or personal on a personal electronic device because if the government wants it, they can now get it," he said. "If you are in a car accident they can go through your whole phone to see if you were a distracted driver."

The New Jersey Supreme Court ruling could have an impact on future court cases involving locked smartphones, and courts will continue to come to different conclusions on the issue of smartphone unlocking until the United States Supreme Court steps in and clarifies how constitutional rights and precedents apply to new technologies.

Note: Due to the political or social nature of the discussion regarding this topic, the discussion thread is located in our Political News forum. All forum members and site visitors are welcome to read and follow the thread, but posting is limited to forum members with at least 100 posts.

Article Link: Suspects Can Be Forced to Provide Smartphone Passcodes, Rules New Jersey Supreme Court

 

[GermanSuplex]

Not a chance. How exactly are they going to enforce that? Forcing them to provide biological data is one thing, but forcing them to speak something they've remembered? You can't force someone to talk, period.

 

[macsrcool1234]

idiot NJ at it once again.

Not a chance. How exactly are they going to enforce that? Forcing them to provide biological data is one thing, but forcing them to speak something they've remembered? You can't force someone to talk, period.

they'll throw you in for contempt until you do

 

[aardwolf]

How do you compel someone? Are you going to waterboard us until we tell you the passcode?

 

[TheYayAreaLiving 🎗️]

Oh heck nooo! Apple do something about this please!

 

[DBZmusicboy01]

Apple NEEDS to put multi user accounts on iPhones so that you could provide THE GUEST account. For OUR privacy.

 

[gavroche]

Not a chance. How exactly are they going to enforce that? Forcing them to provide biological data is one thing, but forcing them to speak something they've remembered? You can't force someone to talk, period.

oops... I entered it wrong five times, darn... it’s erasing my phone

 

[snebes]

Everything is legal in New Jersey...

 

[cmwade77]

Simple solution, Apple and Google need to build in a mechanism where if you enter a certain password/passcode, it immediately erases the phone using a completely secure erase mechanism.

 

[snebes]

How do you compel someone? Are you going to waterboard us until we tell you the passcode?

Jail.

 

[Bawstun]

Not a chance. How exactly are they going to enforce that? Forcing them to provide biological data is one thing, but forcing them to speak something they've remembered? You can't force someone to talk, period.

Uh, then they’ll just hold you in contempt until you do. For years. How dedicated someone is to make the point is what will determine how long you stay in jail. Chelsea Manning did it for years.

 

[Dave-Z]

oops... I entered it wrong five times, darn... it’s erasing my phone

You can install a configuration profile that will secure erase the contents after just a single passcode failure. Seems like a smart move if you're planning to commit crimes in a premeditated fashion. 🤷‍♂️

Nevertheless, I know different jurisdictions have different laws, etc. but my personal take on this is like that of a safe (vault). If there are documents in a safe that would incriminate, the courts are welcome to seize the safe and crack it open by force (cutting through it) or picking the combination. If they succeed without damaging the contents, good for them and those contents can be used. But asking the accused to provide the combination is, in my opinion, going too far. Similarly with a phone, they can seize it and if they can get the contents without damaging them (the contents), good for them. But asking the accused to provide the combination is, in my opinion, going too far.

 

[m4mario]

I think this is a good thing. Apple does not protect the iPhone for criminals to use it for criminal activities. Apple does not open the iPhone because building such a mechanism will create a backdoor, a universal key that cannot be protected and that will compromise all iPhone users to all threats, even from outside law enforcements. Apple complies with law enforcement in every other way. Some people misunderstand this and think Apple is trying to protect terrorists as long as they own an iPhone. That is not the case.

That said, forcing biometrics is one thing. Forcing someone to give up password is still forced testimony (This point however is outside of scope of what Apple is trying to do).

 

[Alan Wynn]

Apple NEEDS to put multi user accounts on iPhones so that you could provide THE GUEST account. For OUR privacy.

I have always something like this for many things, including pictures, notes, etc., that I would not want others to see, even if I hand them my device. It would also be a safety feature when traveling in certain countries, being able to hand an inspector my device, give a passcode and have them see a completely reasonable set of apps, mail, messages and notes, but only those I chose to share.

 

[Rocko99991]

"By providing the passcodes, Andrews would not be providing information the government is not already aware of." Then you don't need my passcode bub.

 

[bollman]

Wouldn't erasing the phone by using the wrong passcode be spoliation of evidence?
And, if this stands, what's the whole point of the beefed up security of mobile phones?

 

[grayskyz]

3 day auto wipe! If you don't input your passcode after 3 days, it will wipe your phone. Problem solved.

 

[Treq]

This is why this election is so important. This could go to the US Supreme Court and whoever is president on January 21st will most likely get to choose at least one seat. I for one don't want trump to be that person. He's done enough damage.

 

[gaximus]

What if you legit forget your code?

 

[benshive]

How do you compel someone? Are you going to waterboard us until we tell you the passcode?

Don't worry, it's just "enhanced interrogation." Definitely not torture. Why not just give them the code if you have nothing to hide?
/s

 

[yaxomoxay]

This is why this election is so important. This could go to the US Supreme Court and whoever is president on January 21st will most likely get to choose at least one seat. I for one don't want trump to be that person. He's done enough damage.

In all fairness, spying on Americans by removing their rights is incredibly bi-partisan.

Apple–FBI encryption dispute - Wikipedia

en.wikipedia.org

 

[ksgant]

Understand: This is with a warrant. The U.S. Supreme Court has already ruled on this, that the police can't just compel someone to unlock their phone and search it. The were unanimous on that: get a warrant.

Now, what THIS is that after they get a warrant, and the suspect still doesn't unlock it. It still stands that the police cannot do this without a warrant or you give them permission.

 

[Wiesenlooser]

A bit of a dumb rule given you can legit forget your password. How are they going to prove you did not?

 

[370zulu]

"Compelling a suspect to unlock a smartphone doesn't violate Fifth Amendment rights"

Complete BS. Period.

 

[benshive]

In all fairness, spying on Americans by removing their rights is incredibly bi-partisan.

Apple–FBI encryption dispute - Wikipedia

en.wikipedia.org

It definitely is. Our 4th amendment rights have been whittled down to nearly nothing over the years under leadership from both parties. The Snowden leaks should have been enough of a wake up call.