Child porn suspect can't be forced to disclose computer password, state supreme court rules
Image from Shutterstock.com.
The Fifth Amendment right against self-incrimination protects a child pornography suspect from being forced to reveal his computer password, the Pennsylvania Supreme Court has ruled.
The court ruled 4-3 for Joseph Davis, who has been held in the Luzerne County Jail on charges of child pornography and illegal use of a communications device during the password litigation, the Associated Press reports. The Electronic Frontier Foundation, which filed an amicus brief supporting the Fifth Amendment argument, applauded the decision in a press release.
State investigators had used a peer-to-peer file sharing network to download two files containing child pornography from computers using Davis’ IP address, according to the majority opinion by Justice Debra Todd.
Armed with a search warrant, the investigators seized a computer in September 2014 and found it had been wiped clean. When agents executed another search warrant in October 2015, Davis said he was the only one who knew his computer password. When asked to provide it, Davis allegedly responded, “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—ing way I’m going to give it to you.”
Later Davis said he couldn’t remember the password, and even if he could, disclosing it would be like pointing a gun to his head and pulling the trigger. He also said he would die in jail before he could ever remember the password.
Revealing a computer password is testimonial in nature, unlike the production of physical evidence such as a blood draw, the Pennsylvania Supreme Court majority said. Revealing the memorized password reveals the contents of the person’s mind, carrying with it implied factual assertions that can incriminate the person.
Information that is testimonial in nature could have to be revealed, however, if it fits within the “foregone conclusion” exception. It holds that such information becomes nontestimonial when the evidence adds little or nothing to facts already known by the government.
That exception should not apply to mental processes such as the revelation of a password, the court majority said.
The top court in Massachusetts reached the opposite conclusion in a case involving a sex-trafficking defendant. In its March ruling, the Massachusetts Supreme Judicial Court said a defendant can be compelled to enter a password if prosecutors can show beyond a reasonable doubt that the suspect knows it. That court said a defendant forced to enter a password discloses only that they know the password and can access the device.
State supreme courts in Indiana and New Jersey are considering similar cases, according to the Electronic Frontier Foundation. There is a significant chance the U.S. Supreme Court will have the last word, EFF says.
