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Constitutional Law Evidence United States Supreme Court White Collar Crime

Fifth Amendment Protection of Cellphone Passwords Remains Murky As Supreme Court Declines to Weigh In

When law enforcement seeks to compel a subject to provide a passcode to allow them to rummage through a cellphone, courts have not spoken with a unified voice. Some, including New Jersey’s highest court, have arrived at the dubious conclusion that requiring an individual to communicate cellphone passcodes to the government does not warrant Fifth Amendment protection. Commentators had hoped that the U.S. Supreme Court would reject that expansive view, however, the Supreme Court declined to wade in, seemingly guaranteeing that continued uncertainty on this critical issue will continue to bedevil criminal practitioners.

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Cellphones regularly have posed perplexing issues to courts struggling to apply our constitutional rights to this ubiquitous and overwhelmingly important modern technology. The already thorny area of how the Fifth Amendment reaches conduct short of an individual actually speaking to the police or taking the witness stand has proven no exception. The right against self-incrimination generally covers potentially incriminatory testimonial communications — assertions of fact deriving from the person’s mind — and not demands to produce something that already exists. Unless, as is typically the case, the very act of producing that thing implicitly communicates incriminatory information.

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