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Court rules the Fifth Amendment doesn't always protect phone passcodes

Judges are still split on whether or not forced access is constitutional.

Published onAugust 11, 2020

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  • New Jersey’s Supreme Court ruled that police aren’t necessarily violating the Fifth Amendment if they compel you to provide a phone passcode.
  • Judges said the Constitution protects you from providing self-incriminating testimony, not documents.
  • US courts are still highly split on the issue.

American courts are as divided as ever on whether or not police can force you to unlock your phone.

As Ars Technica reports, New Jersey’s Supreme Court has ruled that police aren’t automatically violating the Fifth Amendment of the Constitution if they order a suspect to unlock a phone using a passcode. It determined that the amendment only protects against supplying self-incriminating testimony, not documents, and that phones in this case represented nothing more than files.

The ruling comes in a case where an allegedly crooked cop, Robert Andrews, had been accused of tipping off suspect Quincy Lowery about a police investigation. Evidence on Lowery’s phone corroborated the claims, but Andrews refused to unlock his phones on Fifth Amendment grounds.

While unlocking a phone can sometimes amount to testimony (you may be admitting that you own a device, for example), that wasn’t true here. The devices clearly belonged to Andrews, and police already knew the likely contents and where to look. It’s another matter if the government is merely fishing for data or asks a suspect for help finding info, as Indiana’s Supreme Court determined in 2000.

See also: How to protect your privacy using Android

The New Jersey court warned that this doesn’t give officials unfettered access. It argued that suspects should challenge phone data requests on Fourth Amendment restrictions against unlawful searches and seizures. Andrews’ focus on the content was trying to impose Fourth Amendment “privacy principles” on a Fifth Amendment situation.

This doesn’t settle the dispute over police phone unlocking requests. While courts in Colorado, Massachusetts, Vermont, and Virginia have determined that the Fifth Amendment doesn’t necessarily cover data unlocks, courts in Florida, Pennsylvania, and Wisconsin have. The kind of data requested also matters — a California federal court determined that police couldn’t force people to use biometric unlocks.

This might not be settled until the US Supreme Court makes a ruling. As a decision isn’t expected any time soon, it could be a long time before there’s a definitive answer. For now, the best solution for protecting your data may be to put it in secure spaces or, ideally, keep it off your phone in the first place.

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