Another US court says police cannot force suspects to turn over their passwords

Zack Whittaker
An iPhone prompting to enter the passcode is seen on October 25, 2017. (Photo by Jaap Arriens/NurPhoto via Getty Images)

The highest court in Pennsylvania has ruled that the state's law enforcement cannot force suspects to turn over their passwords that would unlock their devices.

The state's Supreme Court said compelling a password from a suspect is a violation of the Fifth Amendment, a constitutional protection that protects suspects from self-incrimination.

It's not an surprising ruling, given other state and federal courts have almost always come to the same conclusion. The Fifth Amendment grants anyone in the U.S. the right to remain silent, which includes the right to not turn over information that could incriminate them in a crime. These days, those protections extend to the passcodes that only a device owner knows.

But the ruling is not expected to affect the ability by police to force suspects to use their biometrics — like their face or fingerprints — to unlock their phone or computer.

Because your passcode is stored in your head and your biometrics are not, prosecutors have long argued that police can compel a suspect into unlocking a device with their biometrics, which they say are not constitutionally protected. The court also did not address biometrics. In a footnote of the ruling, the court said it "need not address" the issue, blaming the U.S. Supreme Court for creating "the dichotomy between physical and mental communication."

Peter Goldberger, president of the ACLU of Pennsylvania, who presented the arguments before the court, said it was "fundamental" that suspects have the right to "to avoid self-incrimination."

Despite the spate of rulings in recent years, law enforcement have still tried to find their way around compelling passwords from suspects. The now-infamous Apple-FBI case saw the federal agency try to force the tech giant to rewrite its iPhone software in an effort to beat the password on the handset of the terrorist Syed Rizwan Farook, who with his wife killed 14 people in his San Bernardino workplace in 2015. Apple said the FBI's use of the 200-year-old All Writs Act would be "unduly burdensome" by putting potentially every other iPhone at risk if the rewritten software leaked or was stolen.

The FBI eventually dropped the case without Apple's help after the agency paid hackers to break into the phone.

Brett Max Kaufman, a senior staff attorney at the ACLU's Center for Democracy, said the Pennsylvania case ruling sends a message to other courts to follow in its footsteps.

“The court rightly rejects the government's effort to create a giant, digital-age loophole undermining our time-tested Fifth Amendment right against self-incrimination," he said. "The government has never been permitted to force a person to assist in their own prosecution, and the courts should not start permitting it to do so now simply because encrypted passwords have replaced the combination lock."

"We applaud the court's decision and look forward to more courts to follow in the many pending cases to be decided next," he added.

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