Illinois Appeals Court Says Fifth Amendment Protections Apply To Cellphone Passwords

from the reel-those-rods-back-in,-boys dept

The key to determining Fifth Amendment protections against compelled production of passwords appears to be a court's definition of the term "foregone conclusion." In many cases, courts have decided the government only has to clear a very low bar to meet this demand. In those cases, the only "foregone conclusion" the government needs to prove is that the person being compelled to provide a password knows the password. Once the government has linked the person to the locked device, it can get on with the compelling.

If a court decides to raise the bar, it gets far more difficult for the government. In a few cases, the government has been asked to show it knows the evidence it seeks can be found in the locked device. Even if it meets this requirement, it can't just start throwing court orders at the criminal suspect. This "foregone conclusion" directly implicates the Fifth Amendment. The government is no longer simply asking someone to unlock a device. It's asking them to directly provide them with evidence that could be used against them.

An Illinois state appeals court has decided the Fifth Amendment protects defendants from producing evidence to be used against them. (via In this case, the defendant was a passenger in a car stopped by law enforcement. A drug dog alerted on a leather bag belonging to the defendant. The ensuing search uncovered a prescription pill bottle containing cocaine, resulting in a charge of possession with intent to distribute.

That's not all the cops found. They also found the suspect's cellphone, which he refused to unlock for them. The prosecution asked the court to force the defendant to provide the password. The trial court declined to do so, saying compelled production of evidence violated the Fifth Amendment. The appeal followed, and the government has now been told twice [PDF] there will be no compelled password production. First, it explains this exception to the Fifth Amendment, which is now enjoying its heyday (so to speak):

The foregone conclusion doctrine is an exception to the fifth amendment privilege. Fisher, 425 U.S. at 411. Per the doctrine, where the existence, location and authenticity of the evidence is a foregone conclusion, that is, it “adds little or nothing to the sum total of the Government’s information,” the fifth amendment does not protect the act of production. Id. The exception applies when the State demonstrates with “reasonable particularity” that when it sought the act of production, the State knew the evidence existed, the evidence was in the defendant’s possession and it was authentic. United States v. Greenfield, 831 F.3d 106, 116 (2d Cir. 2016).

The court then points out what the government ultimately wants is what lies beyond the password, not the password itself.

Here, the State is not seeking the passcode per se but the information it will decrypt. The cases that declare the passcode to be a nontestimonial communication operate under the framework that the passcode is the testimonial communication and that it falls under the foregone conclusion exception to the fifth amendment privilege. We consider that the proper focus is not on the passcode but on the information the passcode protects. The State claims it sustained its burden of proving with reasonable particularity that it knew the passcode existed, that Spicer knew the passcode and that it would be authenticated by entering it into Spicer’s phone. However, what the State actually needed to establish with reasonable particularity was the contents of the phone, which it did not do.

If the state wants to satisfy this requirement, it needs to do far more than it has. So far, all that's been shown is that the officer seeking the search warrant imagines the cellphone will contain plenty of information relevant to the distribution charges, like… um… pretty much the phone's entire contents. The appeals court doesn't care for the breadth of the government's supposition.

The State does not know what information might be on Spicer’s phone but surmises that cell phones are often used in unlawful drug distribution and such information would be available on Spicer’s phone. The State has not provided a particularized description of that information or even evidence that any useful information exists on the phone. The State sought and was granted in the search warrant access to most of the information in Spicer’s phone, including call logs, text messages, multimedia messages, instant messaging communications, voicemail, e-mail, all messaging applications, phonebook contacts, videos, photographs, Internet browsing and mapping history and GPS data between May 24 and June 24, 2017. The State does not identify any documents or specific information it seeks with reasonable particularity. The State is engaging in a fishing expedition and the foregone conclusion exception does not apply here.

The foregone conclusion the government has to work with is far smaller than the foregone conclusion it thought it had:

While the State is aware that the passcode existed and that Spicer knew it, the State could not know that the passcode was authentic until after it was used to decrypt Spicer’s phone. Moreover, the production of Spicer’s passcode would provide the State more information than what it already knew. Although the focus of the foregone conclusion is on the passcode, in our view, it properly should be placed on the information the State is ultimately seeking, which is not the passcode but everything on Spicer’s phone.

The court's decision isn't a blanket statement saying compelled password production will always violate the Fifth Amendment. But it should serve as a warning to law enforcement officers who think they should be able to dig through every phone they seize, no matter how weak their affidavit rationalizations or how tangential the supposed evidence might be to the filed charges.

Filed Under: 5th amendment, illinois, mobile phones, passwords

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  1. identicon
    Anonymous Coward, 21 Mar 2019 @ 7:45pm

    Less you're inside that 100 mile border less constitution free zone
    that encircles 80% of the population

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