Sunday, December 15, 2019

PLW: Password Ruling and Technology: Court Looks to Protect the Innocent

Matthew T. Mangino
The Legal Intelligencer
December 12, 2019
Last month, the Pennsylvania Supreme Court ruled that it is a violation of the Fifth Amendment’s protection against self-incrimination to compel a defendant to disclose a password to allow police access to a “lawfully seized, but encrypted, computer.”
In 2015, the attorney general’s office was conducting an investigation into the use and distribution of child pornography. The attorney general sought a search warrant for Joseph J. Davis’ home after his IP address was linked to child pornography videos and a file-sharing network. Davis admitted to watching child pornography, and law enforcement officials lawfully seized his computer. However, he refused to provide the 64-character password to his computer.
According to the court record, the entire hard drive of the computer was encrypted and “there was no data that could be read without opening the TrueCrypt volume.”
Agents could only confirm that there was “Windows on the computer and the TrueCrypt,” and no knowledge of any specific files other than the operating system files.
Davis was charged with two counts of disseminating child pornography in violation of 18 Pa.C.S. Section 6312(c), and two counts of criminal use of a communication facility in violation of 18 Pa.C.S. Section 7512(a).
The commonwealth sought a court order to compel Davis to reveal his password. Davis invoked his Fifth Amendment right against self-incrimination. The Fifth Amendment to the U.S. Constitution guarantees a defendant the right not to incriminate himself. That means individuals cannot be forced to make statements, or testify, against their self-interest. 
Luzerne County Court of Common Pleas Judge Tina Gartley focused on whether turning over the password would be testimonial.
The Fifth Amendment protects communication by defendants that is “testimonial.” The trial court opined that “the touchstone of whether an act of production is testimonial is whether the government compels the individual to use ‘the contents of his own mind to explicitly or implicitly communicate some statement of fact.’”
The trial court then turned to the “foregone conclusion” exception to the Fifth Amendment. In Fisher v. United States, 425 U.S. 391 (1976), the U.S. Supreme Court established the rationale underlying the foregone conclusion doctrine. The court ruled that an act of production does not involve testimonial communication if the facts conveyed are already known to the government, such that the individual “adds little or nothing to the sum total of the government’s information.” Since Davis admitted to watching child pornography videos and that he is the sole owner of the computer, the trial court held that the exception applied. The Superior Court affirmed.
The case made its way to the Pennsylvania Supreme Court in May. Prosecutors argued that, “The commonwealth does not seek the password to establish or prove a connection between Davis, his computer and its contents because it already has that information. It merely seeks surrender of the password in order to open the lock that Davis has placed on the computer to avoid a lawful search.”
The Supreme Court acknowledged that “at times, constitutional privileges are an impediment to the commonwealth—requiring the commonwealth to do the heavy lifting, indeed, to shoulder the entire load, in building and bringing a criminal case without a defendant’s assistance may be inconvenient and even difficult.”
That difficult burden is no reason to circumvent the rights and privileges afforded an accused by the U.S. Constitution.
The Supreme Court concluded that compelling the disclosure of a password to a computer, that is, the act of production, is testimonial. Revealing a computer password is a verbal communication, not merely a physical act that would be nontestimonial in nature. There is no physical manifestation of a password, unlike a hand writing sample, blood draw or a voice exemplar. As a password is necessarily memorized, one cannot reveal a password without revealing the contents of one’s mind.
In 1990, Justice John Paul Stevens wrote in a dissent in Doe v. United States, 487 U.S. 201 (1990), “A defendant can be compelled to produce material evidence that is incriminating. Fingerprints, blood samples, voice exemplars, handwriting specimens or other items of physical evidence may be extracted from a defendant against his will.” Stevens continued, “but can he be compelled to use his mind to assist the prosecution in convicting him of a crime? I think not. He may in some cases be forced to surrender a key to a strongbox containing incriminating documents, but I do not believe he can be compelled to reveal the combination to his wall safe—by word or deed.”
In 2000, the Supreme Court decided United States v. Hubbell, 530 U.S.23 (2000) involving an issue of Fifth Amendment privilege for a defendant who became intertwined in the “Whitewater” witch hunt targeting Bill and Hillary Clinton. The court explained why a grand jury subpoena requiring a man to assemble self-incriminating documents was improper:
It was unquestionably necessary for the respondent to make extensive use of “the contents of his own mind” in identifying the hundreds of documents responsive to the requests in the subpoena. … The assembly of those documents was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox.
The Pennsylvania Supreme Court borrowed the metaphor raised in Doe and Hubbell to emphasize its holding. A footnote to the opinion contained the following passage, “Indeed, a password to a computer is, by its nature, intentionally personalized and so unique as to accomplish its intended purpose―keeping information contained therein confidential and insulated from discovery. Here, under U.S. Supreme Court precedent, we find that the commonwealth is seeking the electronic equivalent to a combination to a wall safe—the passcode to unlock the appellant’s computer. The commonwealth is seeking the password, not as an end, but as a pathway to the files being withheld.”
In the 27-page majority opinion, Commonwealth of Pennsylvania v. Davis, 56 MAP 2018, Nov. 20, 2019, written by Justice Deborah Todd, the high court acknowledged “the significant and ever-increasing difficulties faced by law enforcement in light of rapidly changing technology, including encryption.”
However she wrote, “This constitutional right is firmly grounded in the realization that the privilege, while sometimes ‘a shelter to the guilty,’ is often ‘protection to the innocent.’”
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book “The Executioner’s Toll, 2010″ was released by McFarland Publishing. Contact him at, and follow him on Twitter @MatthewTMangino).
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