Last week, the Pennsylvania Supreme Court ruled that the Fifth Amendment privilege against self-incrimination bars a court from compelling a defendant to provide the password to an encrypted computer. Reversing the Pennsylvania Superior Court in Commonwealth of Pennsylvania v. Davis, 176 A.3d 869 176 (Pa. Super. 2017), the Pennsylvania Supreme Court ruled that supplying a password was testimonial in nature and therefore protected by the Fifth Amendment. Additionally, writing for the majority, Justice Todd held that the government had not met its burden to seeking to apply the “foregone conclusion” exception to the Fifth Amendment protection.
“If one is protected from telling an inquisitor the combination to a wall safe, it is a short step to conclude that one is protected from telling an inquisitor the password to a computer.”
In multiple amicus briefs, states around the country urged the Pennsylvania Supreme Court not to reverse Davis, arguing that siding with appellant would render “law enforcement incapable of accessing large amounts of evidence.” Id. at 10. Indeed, the Court acknowledged this concern, stating that “[w]e appreciate the significant and ever-increasing difficulties faced by law enforcement in light of rapidly changing technology, including encryption to obtain evidence.”
The Court began its analysis by considering whether compelling the defendant to disclose a 64- character password was “testimonial” in nature and therefore protected by the Fifth Amendment. According to the Court:
Distilled to its essence, the revealing of 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 handwriting sample, blood draw, or voice exemplar. As a passcode is necessarily memorized, one cannot reveal a passcode without revealing the contents of one’s mind. 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.
The Court stressed that the Fifth Amendment protection serves to avoid “placing a suspect in the ‘cruel trilemma’ of telling the truth, lying and perjuring himself, or refusing to answer and facing contempt and jail.”
Next, the Court examined whether the government had met its burden to establish the “foregone conclusion” exception. The Court described this exception as “what is otherwise testimonial in nature is rendered nontestimonial, as the facts sought to be compelled are a foregone conclusion.” According to the Court, the foregone conclusion exception is an “extremely limited exception to the Fifth Amendment privilege” and requires knowledge of: “(1) existence of the evidence demanded; (2) the possession or control of the evidence by the defendant; and (3) the authenticity of the evidence.” The Court found that the government could not establish that its search of the defendant’s computer would be limited to “the single file previously identified”; and thus failed to satisfy the exception’s requirements. Accordingly, the Court concluded that “the compelled recollection of Appellant’s password is testimonial in nature, and consequently, privileged under the Fifth Amendment to the United States Constitution.”
The Court’s 27-page opinion is available at http://www.pacourts.us/.