By Douglas Ankney

In a case of first impression, the Supreme Court of Pennsylvania held that compelling a suspect to disclose the access password to his lawfully seized, but encrypted, personal computer violates the Fifth Amendment’s privilege against self-incrimination.

In 2015, agents from the Office of the Attorney General (“OAG”) executed a search warrant at Joseph Davis’ apartment. The OAG had determined that a computer at Davis’ address used eMule (a peer-to-peer file-sharing network) to distribute child pornography. There was one computer in Davis’ apartment. He informed the agents that he watched pornography on the computer that he believed was legal; that he had previously been arrested for child pornography but didn’t understand why it was illegal in the U.S. since it was legal in other countries; and that he particularly enjoyed watching 10- to 13-year olds.

Davis also stated he was the sole user of the computer and that he used hardwired Internet services, which were password protected—meaning his Internet service was not accessible to the public via WiFi. When Davis was asked to provide the password, he refused. He was arrested for the eMule distributions, and the agents seized his computer. Davis was again asked for the password, to which he replied, “It’s 64 characters and why would I give that to you? We both know what’s on there. It’s only going to hurt me. No f*cking way I’m going to give it to you.” And later, while Davis was in a holding cell, he was asked if he could remember the password. He answered that he could not remember it, but even if he could, it would be like “putting a gun to his head and pulling the trigger” and that he would “die in jail before [he] could ever remember the password.” Forensic agents determined that the computer’s hard drive was encrypted with a TrueCrypt program, and no data could be read without opening the TrueCrypt program – which required the password.

The Commonwealth subsequently filed a motion in the Luzerne County Court of Common Pleas to compel Davis to disclose the password. He responded by invoking his privilege against self-incrimination. The Court of Common Pleas stated that the “foregone conclusion” exception applied to the Fifth Amendment self-incrimination privilege and ordered Davis to divulge the password within 30 days. Davis took an interlocutory appeal, and the Superior Court affirmed. The Pennsylvania Supreme Court granted allocatur.

The Court observed that the Fifth Amendment of the U.S. Constitution provides, “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” The privilege applies “in any ... proceeding, civil or criminal, formal or informal, where the answers might incriminate [the speaker] in future criminal proceedings.” Minnesota v. Murphy, 465 U.S. 420 (1984). To invoke the privilege, the accused must show: (1) the evidence is self-incriminating, (2) the evidence is compelled, and (3) the evidence is testimonial in nature. United States v. Hubbell, 530 U.S. 27 (2000). While the privilege protects an accused from being compelled to testify against himself or otherwise provide the state with evidence that is testimonial or communicative, the privilege does not protect a suspect from being compelled by the state to produce real or physical evidence. Pennsylvania v. Muniz, 496 U.S. 582 (1990). “[I]n order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. Only then is a person compelled to be a ‘witness’ against himself.” Doe v. United States, 487 U.S. 201 (1988). The primary policy undergirding the privilege against self-incrimination is America’s “fierce ‘unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt’ that defined the operation of the Star Chamber, wherein suspects were forced to choose between revealing incriminating private thoughts and forsaking their oath by committing perjury.” Id. The definition of “testimonial” evidence must encompass all responses to questions that, if asked of a sworn suspect during a criminal trial, could place the suspect in the “cruel trilemma.” Muniz.

The Pennsylvania Supreme Court recognized that the Supreme Court of the United States (“SCOTUS”) has not rendered a decision directly addressing whether compelling a person to disclose a computer password is testimonial. However, in Doe, SCOTUS had to decide if compelling a defendant to sign a consent form authorizing a foreign bank to disclose records of the defendant’s accounts violated the privilege against self-incrimination. The government argued that because the banks were in foreign jurisdictions, the court had no power to force those banks to produce the records; thus, the incriminating records were otherwise unavailable.

The defendant argued that compelling him to sign the consent form violated the privilege. SCOTUS rejected the defendant’s argument, reasoning that he was not being compelled to use his mind as a witness against himself. In responding to Justice John Paul Stevens’ dissent, the majority wrote: “In our view, such compulsion is more like being forced to surrender a key to a strongbox containing incriminating documents than it is like being compelled to reveal the combination to petitioner’s wall safe.” Being compelled to surrender a key to a strongbox wouldn’t violate the privilege against self-incrimination because that would be providing physical evidence. But being compelled to provide a combination to a wall safe would violate the privilege because that forces a person to disclose the contents of his mind.

The Pennsylvania Supreme Court had no trouble determining that compelling a defendant to provide a password to his computer is comparable to forcing a defendant to disclose a combination to his wall safe.

The Court rejected the Commonwealth’s argument that the “foregone conclusion exception” applied. For the exception to apply, the government must establish its knowledge of: (1) the existence of the evidence demanded, (2) the possession or control of the evidence by the defendant, and (3) the authenticity of the evidence. Fisher v. United States, 425 U.S. 391 (1976).

In Fisher, the Internal Revenue Service sought to compel the defendants’ attorneys to produce taxpayer documents of the defendants that had been prepared by the defendants’ accountants. The attorneys argued that providing the documents would violate the defendants’ rights against self-incrimination. The Fisher Court found that it was a “foregone conclusion” that the documents existed and that the government was not relying on the “truth-telling” of any of the defendants nor relying on either the defendants’ access to them or authentication of them. Thus, the “foregone conclusion exception” applied to those taxpayer documents.

But the Pennsylvania Supreme Court found that in the 40 years since Fisher was decided, this exception had been discussed only in relation to business or financial records. Doe. These records are a unique category of material that has been subject to compelled production and inspection by the government for more than 100 years. Shapiro v. United States, 335 U.S. 1 (1948). SCOTUS has never expanded the foregone conclusion exception beyond those types of documents, and it would be a significant expansion of the foregone conclusion rationale to apply it to a defendant’s compelled oral or written testimony. Additionally, in the instant case, the Commonwealth had not satisfied the requirements of the exception, i.e., the OAG had not established the file they were seeking was on the computer, nor had they established that Davis actually knew or could remember the password.

The Court held that “the compelled recollection of [Davis’] password is testimonial in nature, and, consequently privileged under the Fifth Amendment….” The instructed that “until the United States Supreme Court hold otherwise, we construe the foregone conclusion rationale to be one of limited application, and … believe the exception to be inapplicable to compel the disclosure of a defendant’s password to assist the Commonwealth in gaining access to a computer.”

Accordingly, the Court reversed the order of the Superior Court and remanded to that court for remand to the trial court for further proceedings consistent with the Court’s opinion. See: Commonwealth v. Davis, 2019 Pa. LEXIS 6463 (2019).

Writer’s note: The Electronic Freedom Frontier (“EFF”) submitted an amicus brief in this case. The Court’s opinion closely parallels EFF’s brief. In agreeing with EFF, the Court wrote: “Requiring the Commonwealth to do the heavy lifting, indeed, to shoulder the entire load, in building and bringing a criminal case without a defendant’s assistance may be inconvenient and even difficult; yet, to apply the foregone conclusion rationale in these circumstances would allow the exception to swallow the constitutional privilege. Nevertheless, this constitutional right is firmly grounded in the “realization that the privilege, while sometimes a shelter to the guilty, is often a protection to the innocent.” A tip of the hat to EFF because if courts ever begin determining our rights based on hardship to the prosecution, we won’t have any protections against governmental abuses. 

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Additional source: eff.org

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