Finger entering phone passcode showing decision on Fifth Amendment

New Jersey Supreme Court Rules Phone Passcodes Are Not Protected by Fifth Amendment

In a blow to personal privacy and legal protection from self-incrimination, New Jersey’s highest court has ruled that people do not have a Fifth Amendment right to refuse to give phone passcodes to police.

Perhaps more disturbing is the rationale that the court used to reach this decision, which was that it was a “foregone conclusion” that the government already had access to any data that might be on the phone.

No legal refusal under Fifth Amendment in New Jersey?

The Fifth Amendment’s celebrated “right to remain silent” no longer applies in New Jersey when police request phone passcodes as part of an investigation. The state’s Supreme Court ruled that it is legal for police to compel suspects to reveal phone passcodes to them, clearing a legal path to threaten them with some variant of an “obstruction” or “refusal” charge as is done when drunk driving suspects refuse to take a breathalyzer test.

The ruling goes against an established grain somewhat, as other states have previously ruled that forcing suspects to give up phone passcodes is a clear Fifth Amendment violation. Indiana and Pennsylvania have taken this position in recent rulings; the state of Florida’s Supreme Court was set to take the issue up in 2019 before charges were dropped in the relevant case.

New Jersey’s ruling also appears to conflict with a 2014 United States Supreme Court ruling establishing that police must have a warrant to search someone’s phone, citing the potentially sensitive nature of items that might be on that phone. Riley v. California established that cell phones are a unique category of personal possession that are likely to contain highly sensitive information, and that lack of access to them does not pose a significant threat to law enforcement interests. In a separate case, a California US District Court judge ruled that state police are not allowed to force suspects to use their biometric identification markers to unlock their phones.

New Jersey’s interpretation frames the Fifth Amendment as only applying to incriminating testimony, not to “produced information” such as digital files. The ruling could set up another showdown in the US Supreme Court over the issue.

The problem of phone passcodes

Indiana’s ruling on the subject establishes the primary argument against free police access to phone passcodes — the phone may contain incriminating information not related to the immediate investigation, and thus constitutes a “fishing expedition” that could prompt police departments to search phones as a routine matter of course just in case something interesting was on them.

The level of access to phone passcodes that law enforcement is entitled to has been a hot-button issue in the past decade, with most of the focus on the right to break encryption should these codes not be made available. The argument has been symbolized by a public and long-running conflict between Apple and the US government over a proposed “encryption backdoor” that would allow law enforcement unfettered access to devices. Encryption proponents point out that any such backdoor would defeat the fundamental purpose of encryption.

The reasoning by which New Jersey’s top court arrived at this most recent Fifth Amendment ruling will no doubt be turned over by many experienced legal minds, but specious qualities are apparent even to the layman. The ruling stems from a case in which a corrupt Essex County sheriff tipped off an associate that an investigation was being opened into his activities. The associate locked his phones and refused to unlock them when police took him into custody. The court’s decision hinged on the fact that both phones in question were registered under the suspect’s name; the reasoning was that the passcodes in isolation are something that the suspect should thus be expected to know, and are also not individually something that constitutes sensitive information. It essentially appears to be an end run around the spirit of the Fifth Amendment protection by treating phone passcodes as a distinct information category and disregarding any information on the phone that they might open the door to.

The ruling does not make clear whether encrypted files on a device are subject to the same demands during searches and seizures. The case seems to hinge on a reasonable expectation that someone known to own a device (in this case having it registered in their name) should also know the passcodes to unlock it. They can thus be legally compelled with an obstruction charge if they claim they do not remember the phone passcodes. However, there is a much more plausible argument to be made that encrypted files on a device might be old and that the owner has forgotten the password with the passage of time. Would it be legally permissible to hold someone in indefinite contempt of court when the possibility exists that they legitimately forgot the password?

Another question that this line of logic raises is what the police are empowered to do when there is doubt about who actually owns the device; for example, what happens if the suspect uses a “burner” phone that has no connection to their real name and then claims that it was found or belongs to someone else?

US federal laws generally preempt state laws, so there will no doubt be a battle of Fifth Amendment constitutionality brewing over this decision. There is a theoretical possibility of state nullification of federal laws that can be demonstrated to be unconstitutional, but federal courts have yet to actually uphold this in a real case.


Senior Correspondent at CPO Magazine