The Volokh Conspiracy

Jodi Kantor and Adam Liptak of the New York Times have published a remarkable story about Dobbs that reports on private correspondences, votes at conference, and more. This post will highlight sixteen of the largest disclosures, and close with some broader thoughts. And I've presented this narrative in (roughly) chronological order.

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One of the major issues in the law of digital evidence investigations is how the Fifth Amendment privilege against self-incrimination applies to unlocking phones.  As I wrote here at the Volokh Conspiracy back in 2020, the lower court caselaw is a total mess. No one can say what the law is.  And I've been waiting for a case to come down that might be a good candidate for U.S. Supreme Court review to clear up the mess.

Here's a possibility: The Utah Supreme Court's ruling today in State v. Valdez. In this post, I want to talk about Valdez and consider if it would be a good prospect for Supreme Court review.

The Facts

Valdez was charged with kidnapping and assault of his ex-girlfriend.  The government had a warrant to search his phone, as a lot of the evidence was thought to be of their communications. And his ex-girlfriend's phone, which would also have the communications, had gone missing. But Valdez's phone was locked, with a nine-dot pattern passcode needed to access it, and the police could not break in.  The government asked Valdez for his password, telling him that if he declined they might damage the phone to try another way to bypass the encryption. But he refused to provide the passcode, and he told them to just destroy the phone.  The government was never able to get into the phone.

At trial, the government wanted to put on testimony that Valdez refused to unlock the phone as evidence of his guilt. The defense objected, arguing that Valdez had asserted his Fifth Amendment privilege.  The trial court overruled the objection, allowing the testimony.  During the closing argument, the prosecution emphasized that the text messages between the defendant and his ex-girlfriend stored on his phone would answer whether this was a real kidnapping (as the prosecution claimed) or consensual (as the defense asserted).  And in that context, the prosecution argued, the refusal to unlock the phone was incriminating.  The jury convicted the defendant.

The Valdez Ruling

The parties in the case both assume, as the court of appeals ruled below, that the government cannot comment on a defendant's assertion of his Fifth Amendment privilege under Griffin v. California, 380 U.S. 609 (1965).  Griffin ruled that the government can't comment on the defendant's refusal to testify at trial, and it's not obvious it extends to a pre-trial assertion. But the Utah Supreme Court accepts that framing, assuming for the purposes of argument that the key question is whether Valdez had a Fifth Amendment privilege not to provide his passcode.  And the court concludes that the answer is yes.  As it summarizes:

We first address the State's argument that providing a passcode is not a testimonial communication. We disagree. Providing a passcode is testimonial because it is a communication that discloses information from the person's mind. We then move to the State's other arguments. We conclude that the foregone conclusion exception does not apply here. That exception arises in cases involving compelled acts of producing evidence to determine whether the act has any testimonial value because the act implicitly conveys information. Such an analysis is not necessary in a case involving a verbal statement that explicitly provides information.

The Utah Supreme Court thus agrees with the court of appeals that the conviction cannot stand, as it was based on a Fifth Amendment violation and it was not harmless error.

Why This Might Be Cert-Worthy

Will the U.S. Supreme Court review Valdez, assuming the state seeks review?   Maybe.

Here's the case in favor.

First, there's a state Supreme Court split on how the Fifth Amendment privilege applies to orders to compel a password in order to execute a warrant for a phone.   Unless I'm missing something, Valdez joins the Pennsylvania Supreme Court's ruling in Commonwealth v. Davis in upholding the privilege in that setting. On the other hand, the New Jersey Supreme Court disagreed with that view in State v. Andrews, ruling that the foregone conclusion doctrine applies and the defendant can be forced to disclose the password if the government can show he knows it.  So at the very least, there is a 2-1 split on compelled disclosure of passwords.

Second, Valdez would come to the Supreme Court in a better procedural posture than other cases.   Most compelled unlocking cases involve interlocutory appeals.  The government gets an order requiring the defendant  to say the password or unlock the phone, and the government seeks enforcement of the order.  Whether the order can be enforced then goes up on appeal while the rest of the case is still pending.  That can create procedural barriers, most significantly if the state wins in the state supreme court; the U.S. Supreme Court probably lacks jurisdiction to review the ruling under the final judgement rule.  Here, by contrast, there's a final judgment.

Some Potential Complications

But there are some complications.

First, Valdez is a compelled disclosure case, not a compelled unlocking case.  There are state supreme court splits on both compelled disclosure and compelled unlocking. But the issues are potentially very different, as the Valdez court explored in depth.  In a case that involves an interlocutory appeal, the two issues are often either presented together or at least are easy to address together. The government has an order, and it just wants "in" to the phone so it can execute the warrant. Typically, prosecutors are happy if the defendant either unlocks the phone or gives the government the password to unlock it.  Either is fine.

It's different with Valdez.  The record in Valdez is that he was asked to provide the passcode, not to enter it.  And the issue is whether the government could have testimony on that.  If the Supreme Court were to take Valdez, it might have to only answer the compelled disclosure issue, and then save the compelled unlocking issue for another day.

That's certainly possible. But it might be odd to only address half of the puzzle. Compelled unlocking and compelled disclosure raise different legal issues, but they go together in practice. Would the Supreme Court want to take on one half of the puzzle without being able to take on the other half?  I don't know.

A second question is whether the somewhat uncertain assumptions framing Valdez might deter the Justices.  As Footnote 6 of Valdez points out, the parties are assuming that Griffin applies to commenting on pre-trial evidence.  And there are also interesting Salinas v. Texas issues lurking: Assuming that the refusal to unlock the phone counts as an assertion of the privilege, what follows from that is an issue not explored by Salinas.  But maybe the U.S. Supreme Court would just put that set of issues aside, taking Valdez for the specific issue on which the parties have agreed the case rests.

As always, stay tuned.

I wrote last week about an oral argument in the Fourth Circuit involving geofence warrants.  Geofence warrants are warrants to obtain the location data that Google users let Google collect if they opt in to Google's location history service, which about a third of Google users do.  Geofence warrants have been possible because, if you opt in, Google keeps a copy of the location history.  And records are kept can be compelled, at least if the legal process is valid.

All of which makes this Google announcement from yesterday of great interest. Google will no longer keep location history even for the users who opted in to have it turned on.  Instead, the location history will only be kept on the user's phone.

The Timeline feature in Maps helps you remember places you've been and is powered by a setting called Location History. If you're among the subset of users who have chosen to turn Location History on (it's off by default), soon your Timeline will be saved right on your device — giving you even more control over your data. Just like before, you can delete all or part of your information at any time or disable the setting entirely.

If you're getting a new phone or are worried about losing your existing one, you can always choose to back up your data to the cloud so it doesn't get lost. We'll automatically encrypt your backed-up data so no one can read it, including Google.

Additionally, when you first turn on Location History, the auto-delete control will be set to three months by default, which means that any data older than that will be automatically deleted. Previously this option was set to 18 months. If you want to save memories to your Timeline for a longer period, don't worry — you can always choose to extend the period or turn off auto-delete controls altogether.

These changes will gradually roll out through the next year on Android and iOS, and you'll receive a notification when this update comes to your account.

Unless I'm missing something, this will entirely defeat geofence warrants— which, I would speculate, was probably the point of Google's policy change.  If Google doesn't keep the records, Google will have no records to turn over.  If the government comes to Google with a court order for geofence data, Google will just say, sorry, we don't keep that stuff anymore.

My very tentative sense, from a public policy standpoint, is that this seems like a bit of a bummer.  Geofencing was being used to solve some really serious crimes—like murders, rape, and armed robberies—when there were no known suspects or leads and the case had gone cold.  Having governments be able, with sufficient cause, to go to a court, get a court order, and then obtain potentially responsive location records that could provide a lead to investigate was, on the whole, a good thing.

Of course, that public interest has to be balanced with the public interest in privacy.  But my sense is that geofence warrants have been implemented (and could be implemented in the future) in ways that provide far greater privacy protection than normally exist with warrants.  Every technique raises risks of abuse.  But if you had to look at all the pluses and minuses of different techniques, a court order regime to access geofence records had more pluses and fewer minuses than those records not existing.

It will be interesting to see if we learn why Google made this change.  Google is a private company. It has to answer to its shareholders, not to the public interest. And it's totally plausible that this was just a sensible business decision.  If Google can provide location history for those who want it without keeping the records, Google presumably benefits by not having to deal with the privacy headaches of responding to geofence warrants.

If this is what drove Google' decision, it's an example of a less-appreciated way that the market regulates privacy.  If you're providing a data service, responding to court orders for user data is not part of your business model. It's a costly hassle.  And it can only lead to bad press.  So you might look for ways to avoid keeping records, as records never kept are records that cannot be turned over.

As always, stay tuned.