States remain split on whether the Fifth Amendment protects passcodes
Elsewhere in the country, Indiana’s Supreme Court recently ruled that the Fifth Amendment does protect from being forced to provide a passcode. All in all, Florida, Pennsylvania, and Wisconsin are also like Indiana and have ruled that the Fifth amendment does protect passcodes. 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. This inevitable side effect of giving up the passcode for encryption is too much like a fishing expedition for more evidence. In contrast, state courts in Virginia and Massachusetts have ruled similarly to New Jersey. Add on top of that federal cases that have caused similar rulings in Colorado and Vermont and we officially have no consensus on whether a passcode is protected by the Fifth Amendment and hints of patchwork enforcement.The NJ court actually noted that the Fourth Amendment privacy right against illegal search and seizure should be the route to challenge law enforcement requests for a passcode. What is clear from all of these rulings is that a passcode is still superior to biometrics and development/deployment of decoy operating systems is needed. Extreme examples include instances where police have used the faces or fingerprints of dead people to unlock phones. Until the point that the US Supreme Court makes a decision on this, the enforcement will continue to be patchwork.
