Privacy advocates scored a major victory when the Pennsylvania Supreme Court ruled last week, in a 4-3 decision, that a person does not have to reveal a computer password to law enforcement.
The ruling stems from a case that started in 2014 when investigators with the Pennsylvania Attorney General’s Office discovered child pornography being shared online. Eventually, the case led them to Joseph Davis, a Luzerne County resident who was eventually charged with two counts of distributing child pornography.
In October 2015, agents seized a computer from Davis that agents claimed held illicit material. While Davis admitted to watching porn on his computer and that he had been arrested previously on child pornography charges, he refused to provide the password law enforcement needed to access the computer and find the file in question for evidence against him.
Two months later, when a judge tried to compel Davis, he again refused, citing his Fifth Amendment right against self-incrimination. However, that judge eventually ruled that based on previous information that Davis told investigators – such as that he was the only user of the computer and a statement to an agent saying disclosing the password would only hurt his case – the case met the “foregone conclusion” exception.
An appellate upheld the lower court’s decision. However, Davis appealed to the state’s top court.
Justice Debra Todd said that unlike a blood sample, there is “no physical manifestation” of a password. As such, that makes a password testimonial in nature and protected by the Fifth Amendment.
“As a passcode is necessarily memorized, one cannot reveal a passcode without revealing the contents of one’s mind,” Todd wrote in an opinion joined by Chief Justice Thomas Saylor and Justices Christine Donohue and David Wecht.
Todd admitted in her opinion that sometimes Constitutional rights hinder prosecutions. However, what may be “‘a shelter to the guilty,’ is often ‘a protection to the innocent.’”
Justice Max Baer dissented, with Justices Kevin Dougherty and Sallie Updyke Mundy joining.
The ruling sends the case back to the Luzerne County Court of Common Pleas, where it will continue based on the justices’ decision.
"We are carefully reviewing the court's decision," said Jacklin Rhoads, a spokeswoman for Attorney General Josh Shapiro.
Peter Goldberger, president of the American Civil Liberties Union of Pennsylvania, argued before the Supreme Court on Davis’ behalf. In a statement, he said the state justices upheld basic privacy rights for everyone.
“The state and federal constitutions promise that people accused of crimes have the right to defend their own liberty,” he said. “They are under no obligation to assist the police or prosecutors in building a case against them by divulging their innermost thoughts.”
The Electronic Frontier Foundation filed a brief in support of Fifth Amendment rights in the case. Andrew Crocker, a senior staff attorney, said courts must take into consideration technological advances when considering an individual’s rights.
“We store a wealth of deeply personal information on our electronic devices,” he wrote in a foundation blog post. “The government simply should not put individuals in the no-win situation of choosing between disclosing a password – and turning over everything on these devices – or instead defying a court order to do so.”
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