Court Rules a Defendant’s Passcodes Are Not Protected
Recently the Illinois Supreme Court ruled that a defendant’s Fifth Amendment rights against self-incrimination do not apply to cell phone passcodes and courts can order a defendant to provide the passcode to police. The charges stemmed from an alleged forgery of two paychecks for $274.33 and $433.22 that were made out to the defendant in that case and deposited via mobile deposit. Local police obtained a search warrant for the defendant’s phone, believing it contained photos of the alleged checks, but he was unwilling to give them his passcode. Because the police department did not have the technology to open the phone without the passcode and other agencies were unwilling to assist them for such a small matter, the police needed the defendant to provide them access. But the defendant argued that compelling him to enter a passcode was a violation of his right against self-incrimination because such information is testimonial because it delved into the contents of his mind and provided the police with evidence of his guilt. The Illinois Supreme Court disagreed, saying that the “testimony” embedded in the act of entering the phone’s passcode was a “foregone conclusion” and thus “insufficiently testimonial” to be protected by the Fifth Amendment and further that the passcode is self-authenticating.
ACLU Warns of Implications of the Decision
The ACLU was quick to condemn the ruling, saying it weakened the Fifth Amendment rights of individuals. Illinois now joins Massachusetts and New Jersey in states that have ruled that forcing a defendant to unlock their phones is not a constitutional violation, although Indiana and Pennsylvania have ruled in the opposite way. In the digital age, courts have struggled to adapt constitutional protections to new and emerging technologies, although given the amount of personal information contained on many of the devices, the ACLU argues that said protections are even more paramount. Given the emerging split amongst states, the United States Supreme Court may ultimately give guidance to states about the whether the Fifth Amendment prevents compelling passwords to cellphones (or other devices or technology) but until then residents of Illinois will have to be careful about what information is stored on their cell phone given the avenues currently available to law enforcement to compel them to divulge their passcodes which can lead to the discovery of evidence contained inside.