WASHINGTON, January 8, 2021 – The American Civil Liberties Union and the Electronic Frontier Foundation are urging the U.S. Supreme Court to ensure the Fifth Amendment protection against self-incrimination extends to the digital age by prohibiting law enforcement from forcing individuals to disclose their phone and computer passcodes.
“The Fifth Amendment protects us from being forced to give police a combination to a wall safe. That same protection should extend to our phone and computer passwords, which can give access to far more sensitive information than any wall safe could,” said Jennifer Granick, ACLU surveillance and cybersecurity counsel. “The Supreme Court should take this case to ensure our constitutional rights survive in the digital age.”
In a petition filed Thursday and first reported by The Wall Street Journal, the ACLU and EFF, along with New Jersey-based Tarver Law Offices, are asking the U.S. Supreme Court to hear Andrews v. New Jersey. In this case, a prosecutor obtained a court order requiring Mr. Robert Andrews to disclose passwords to two cell phones. Mr. Andrews fought the order, citing his Fifth Amendment privilege. Ultimately, the New Jersey State Supreme Court held that the privilege did not apply to the disclosure or use of the passwords.
“There are few things in constitutional law more sacred than the Fifth Amendment privilege against self-incrimination,” said Mr. Andrews’ attorney, Robert L. Tarver, Jr. “Up to now, our thoughts and the content of our minds have been protected from government intrusion. The recent decision of the New Jersey Supreme Court highlights the need for the Supreme Court to solidify those protections.”
The U.S. Supreme Court has long held, consistent with the Fifth Amendment, that the government cannot compel a person to answer a question whose answer could be incriminating. Lower courts, however, have disagreed on the scope of the right to remain silent when the government demands that a person disclose or enter phone and computer passwords. This confusing patchwork of rulings has resulted in Fifth Amendment rights depending on where one lives, and in some cases, whether state or federal authorities are the ones demanding the password.
“The Constitution is clear: no one ‘shall be compelled in any criminal case to be a witness against himself,’” said EFF Senior Staff Attorney Andrew Crocker. “When law enforcement requires you to reveal your passcodes, they force you to be a witness in your own criminal prosecution. The Supreme Court should take this case to settle this critical question about digital privacy and self-incrimination.”
The petition is here: https://www.aclu.org/legal-document/andrews-v-state-new-jersey-petition-writ-certiorari.