The Volokh Conspiracy
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I have blogged many times, and written a few law review articles, about how the Fifth Amendment privilege against self-incrimination applies to compelled decryption. The New Jersey Supreme Court handed down a new decision today, State v. Andrews, that basically leaves me unable to say what the law is. Instead of trying to describe the law, I think I'll explain it through the following imagined dialogue.
Student: Hi, Professor! I have a really simple question: Can the government make you unlock your phone if you plead the Fifth?
Teacher: That's a great question. Let me ask you to be more specific. When you say, "make you unlock your phone," what do you mean? Are you asking if they can make you enter in the password to unlock the phone without disclosing the password to the government?
Student: Sure, I guess that's one way to do it. What's the answer?
Teacher: It's not clear. It depends what state you're in. If you're in Massachusetts, the state supreme court has ruled that they can make you unlock the phone if it's your phone or there's some other reason to think you know the password. If you're in Indiana, though, the state supreme court says the law is different. In Indiana, the government can't make you unlock your phone unless the investigators already know the incriminating evidence on the phone.
Student: That's confusing! Is the law clearer if the government has another way to have you unlock your phone? Like, what if they order you to disclose the password rather than enter it?
Teacher: Again, it depends what state you're in.
Student: It's Massachusetts versus Indiana again, right?
Teacher: No, this time it's Pennsylvania versus New Jersey. If you're in Pennsylvania, the state supreme court says you can't be ordered to disclose your password. But if you're in New Jersey, the state supreme court says you can be ordered to disclose the password as long as there's evidence you know or have it.
Student: Wow, it sounds like the courts are confused. But at least we know what states to look to depending on whether the government's order is to enter the password versus to disclose it. There's uncertainty, but at least there's two distinct lines of cases.
Teacher: Not so fast. Some courts have treated them as distinct lines of cases. And that makes sense: Under traditional Fifth Amendment caselaw, there's a different constitutional standard for compelling statements and compelling acts. But several of these court decisions, like the New Jersey case, don't distinguish between password entry and password disclosure. They treat them as basically the same thing. So maybe it's two 1-1 splits, or maybe there's just one 2-2 split. It's hard to say.
Student: I guess it's up to the U.S. Supreme Court to figure all this out. They can decide how to reconcile the existing Supreme Court cases and come up with a uniform rule.
Teacher: Yes, although that's complicated, too. The Supreme Court's caselaw on how the privilege against self-incrimination applies to compelled acts mostly dates to the 1970s. Two Justices, Justice Thomas and Justice Gorsuch, have already announced that they may not follow it and that they may be interested instead in applying the original public meaning of the Fifth Amendment compelled decryption.
Student: That sounds impossible!
Teacher: Well maybe not, in light of the 1807 Burr case. But it certainly adds a complication. You may have some Justices looking to update the Fifth Amendment for the digital era, some Justices trying to apply existing doctrine, and some Justices poring over ancient texts to see what the answer should be. It's not clear where the majorities may be.
Student: This sounds messy. But at least we have certainty on one scenario, compelled biometrics. When the government wants to make someone put a thumb on a keypad or look into a scanner, there's obviously no Fifth Amendment privilege for that. After all, that's the body, not the mind. It's obviously not forcing the person to implicitly speak anything.
Teacher: That certainly seems right. And it's what a bunch of courts have said, including the state supreme court in Minnesota. But the lower courts aren't uniform on that, either. A bunch of federal magistrate judges have disagreed, on the thinking that biometric access effectively proves ownership and use of the phone. There isn't disagreement on this among state supreme courts or federal courts of appeals, but even that is somewhat uncertain right now.
Student: Is this going to be on the exam?
As always, stay tuned.