Passcodes Are Protected By the Law – Sort Of

According to Naked Security, passcodes are now being spun into the Fifth Amendment, which protects U.S. citizens from being held for committing a crime, unless they have been indicted correctly by police.

The latest case seen in the Florida Court of Appeals demonstrates how it’s no longer enough for police to have a “reasonable certainty” that a device is able to be unlocked by a person targeted by the order; this means that previously, the government only had to show that a defendant knew a password. Instead, now, police need to know that a device involved in a case has “specific evidence needed to prosecute the case.”

In the recent Florida case – where a teenager drove under the influence of alcohol, got into an accident, killed one of their passengers, and police requested that they unlock their phone for the corresponding legal case – police did not prove that there was evidence on the involved device to assist in the trial. Because of this, the trial court could not find that the information on the device was “already known to the state,” and within the “forgone conclusion” exception.

“Regardless of the ‘foregone conclusion’ standard, producing a passcode is testimonial and has the potential to harm the defendant, just like any other Fifth Amendment violation would,” the Florida court said, according to Naked Security. “It’s not as if the passcode itself does anything for the government. What it’s really after is what lies beyond that passcode: information it can use as evidence against the defendant who’s being compelled to produce it.”

What happened in Florida, and what it means:

Based on these findings, the Florida Court of Appeals quashed the court’s order for the defendant, Naked Security said. According to court documents,

“below and on appeal, the state’s argument has incorrectly focused on the passcode as the target of the foregone conclusion exception rather than the data shielded by the passcode, arguing that “because the State has established the existence of the … evidence on the Petitioner’s cell phone, and that he can access the content of his phone,” the compelled search was acceptable.”

Additionally, Naked Security said that these “grabs for passcodes” in this case “amount to phishing expeditions.” “Without reasonable particularity as to the documents sought behind the passcode wall, the facts of this case “plainly fall outside” of the foregone conclusion exception and amount to a mere fishing expedition,” according to the court documents.

However, while this happened to be the case for Florida, Naked Security says that state courts ultimately can’t change how passcode-disclosure/Fifth Amendment cases are decided nationally. As a result, decision makers might consider researching the passcode –related laws in their state, especially if an employee, business or institution as a whole runs into a similar legal snag.