Compelled passwords

We all have clients who have been ordered to enter their passwords to their cellphone so the investigators can forensically examine the phone. As military defense counsel we frequently have these issues come up.

In 2018 there were an estimated 396 million smartphones and cellphone accounts nationwide. Carpenter v. United States, 585 U.S. ___, 138 S.Ct. 2206 (2018). Important personal information exists in smartphones. In the context of searching smartphones, the requirement for specificity should be at its apogee. Smartphones are mini-computers with extraordinary amounts of personal information, increasing exponentially on the device. Invading a smartphone is more harmful, quantitatively, and qualitatively, to privacy than invading a house or even early cellphones. See generally, United States v. Riley, Brief of Electronic Privacy Information Center (EPIC). The court in Riley observed that,

“modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy. A smartphone of the sort taken from Riley was unheard of ten years ago; a significant majority of American adults now own such phones. See A. Smith, Pew Research Center, Smartphone Ownership—2013 Update (June 5, 2013). Even less sophisticated phones like Wurie’s, which have already faded in popularity since Wurie was arrested in 2007, have been around for less than 15 years. Both phones are based on technology nearly inconceivable just a few decades ago[.]

(Note that Riley is a search incident to arrest case in which the court said no warrant is needed to take the cellphone but one is needed to search the phone.) There is a good new article by Orin Kerr, a doyen of law and technology.

Orin S. Kerr, Decryption Originalism: The Lessons of Burr, 134 Harv. L. Rev. 905 (2021). He notes that the law of whether compelling entry of a cellphone password, even with a search warrant, violates the Fifth Amendment, is in flux. Depending on the place of the incident, the courts take differing views on the Fifth Amendment issue. He predicts that soon the SCOTUS will have to take up the case because of the circuit split and frequency of the issue. The resolution of the issue will be interesting, especially when Justice Gorsuch gets to read all about it.

Prof. Kerr has also written, Compelled Decryption and the Privilege Against Self-Incrimination. 97 TEXAS L. REV. (Online version) (2020). And the NACDL has an online primer discussing United States v. Riley, 134 S.Ct. 2473 (2014). another interesting read is, Nicole Friess, When Rummaging Goes Digital: Fourth Amendment Particularity and Stored E-Mail Surveillance, 90 NEB. L. REV. 971 (2013).

Here is an interesting piece on just how frequent and in-depth are cellphone searches in the United States.

He notes that the law of whether compelling entry of a cellphone password, even with a search warrant, violates the Fifth Amendment, is in flux. Depending on the place of the incident, the courts take differing views on the Fifth Amendment issue. He predicts that soon the SCOTUS will have to take up the case because of the circuit split and frequency of the issue. The resolution of the issue will be interesting, especially when Justice Gorsuch gets to read all about it.

In United States v. Robinson, the CAAF did not have to squarely face the issue because the Appellant had consented. And, even if there was no consent, the issue was waived because there was no pretrial motion suppress.

Here is a link to the amicus brief of EFF in United States v. Mitchell.

So, if you had a cellphone and it was taken by law enforcement, exercise your rights. And make sure you tell your military defense counsel everything, great detail, what happened when investigators first asked for you cellphone or took it.