Personal computers contain a significant amount of sensitive information. There could be financial documentation, emails, browsing history, and downloads. Law enforcement, when investigating wrongdoing, often seeks information on the suspect's computer. However, law enforcement in Pennsylvania cannot compel an accused person to reveal their computer password over their Fifth Amendment objection, according to a recent decision by the Pennsylvania Supreme Court.
The defendant in the case, Joseph Davis, is unsympathetic to say the least. Comcast reported his name and address to police after his registered IP address transferred data containing child pornography from a peer-to-peer file sharing site. Ultimately, police arrested Davis on two counts of disseminating child pornography. In transit to his arraignment he admitted to liking pornography involving pre-teens.
During his arrest, when police asked him to reveal his password, he said, “[w]e both know what's on there. It's only going to hurt me. No fucking way I'm going to give it to you." Davis continued to refuse to provide the password after his arrest, arguing that doing so would violate his Fifth Amendment right against self-incrimination.
His computer was encrypted with TrueCrypt, a now-defunct freeware. Davis had used this to encrypt his entire hard drive; only he knew the password.
The Fifth Amendment prohibits the government from forcing individuals to testify against themselves. But limitations and exceptions exist. For example, courts have distinguished between “testimonial" and “physical" evidence. The government can compel individuals to hand over physical evidence, but not "the contents of his own mind.
Here, Davis' statements led the trial and appellate courts to find that the “foregone conclusion" exception applied. The U.S. Supreme Court first articulated this exception in Fisher v. United States. Under the foregone conclusion exception, a defendant cannot plead the Fifth if the government already knows the evidence exists, the defendant is in possession or control of that evidence, and the evidence is known to be authentic. The trial court found, in other words, that the revelation of the password would not lead to any new evidence, since it was clear that child pornography existed on Davis' computer.
The foregone conclusion exception has had “circumscribed application . . . for good reason," the state's highest court wrote in its recent opinion overturning the lower courts' decisions. Applying the foregone conclusion exception so broadly here “would allow the exception to swallow the constitutional privilege," the justices wrote. They noted that the exception has only been used a few times for business and financial documents that typically add little or nothing to the government's case. Here, however, the evidence would add significantly to the government's case. “When comparing the modest value of this exception to one's significant Fifth Amendment privilege against self-incrimination, we believe circumscribed application of the privilege is in order."
While the justices acknowledged that the decision could frustrate law enforcement investigations, the Fifth Amendment is a foundational right.