“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 respond to a question when the 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.
ShareTweet The New Jersey Supreme Court has ruled that passcodes aren’t protected by the Fifth Amendment.The rationale in these states is that while law enforcement may know about certain incriminating documents that could be accessed if the passcode were provided, providing the passcode allows access to absolutely everything on the phone – which could turn up additional evidence that prosecutors didn’t know about.
“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.”
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