Decision to Compel Password Is 5th Amendment 'Death Knell'

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By William Vogeler, Esq. on March 12, 2019 2:10 PM

If you thought some hacker might discover your password, think again. But this time, think about some lawyer.

Attorneys have the power to force people to give up their passwords. It happened recently -- again -- in a criminal case.

The Massachusetts Supreme Judicial Court said a defendant had to comply with a prosecutor's demand for a passcode. But what about privacy and the privilege against self-incrimination?

What Privilege?

Dennis Jones was accused of sex trafficking, and prosecutors demanded his cellphone password. They wanted more evidence that he had used his phone for prostitution.

He refused, citing his Fifth Amendment privilege. But the supreme judicial court said the law provides an exception to the privilege when prosecutors already know the information being compelled.

Commonwealth v. Jones was a 7-0 decision. However, one member of the court had a problem with it. Justice Barbara Lenk said it "sounds the death knell" for the Fifth Amendment.

"The court's decision today sounds the death knell for a constitutional protection against compelled self-incrimination in the digital age," she wrote. "After today's decision, before the government may order an individual to provide it with unencrypted access to a trove of potential incriminating and highly personal data on an electronic device, all that the government must demonstrate is that the accused knows the device's passcode."

"Death Knell"

Lenk concurred in the decision because the U.S. Supreme Court created the "foregone conclusion" exception when the government served a subpoena for documents in another case. Other federal appeals courts also have extended the rule to electronic devices.

So it is enough that people know their password for a prosecutor to compel disclosure. For some people, that's not a problem because they can never remember their passwords.

But for everybody else, or at least those with incriminating information on their electronic devices, it's a problem.

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