Smartphones have taken over our lives faster than the law is able to deal with. For a few years now, it’s been kind of an open legal question whether or not law enforcement can force you to provide them with the password or PIN you use to unlock your phone. A few previous courts have ruled no, that having to provide your passcode is tantamount to self-incriminating testimony. But recently, an appeals court in Florida has found the other way.
In this particular case, as Courthouse News reports, the phone is a significant part of the alleged crime in question.
A woman out shopping in Florida saw a man crouch down and aim a phone under her skirt, presumably to snap photos. She confronted the man, who then ran out of the store. However, police were later able to track him down based on his car’s license plate number.
When police picked up the suspect and arrested him for voyeurism, he agreed that they could search his phone — an iPhone 5 that would, presumably, have any illicit photos he’d snapped on it. Before they actually could, however, he revoked consent and refused to tell police his four-digit passcode. The police eventually went and got a search warrant but, without the passcode, were still unable to search the device.
Conceptually, it’s a similar situation to what the FBI and Apple argued out this spring, in the wake of the San Bernardino mass shooting. Law enforcement could in theory attempt to brute force the password — there are only 10,000 possible combinations between 0000 and 9999, after all — but entering the wrong one more than 10 times will force the phone to permanently erase any data it has stored.
Logistically and legally, however, it’s very different for one key reason: this suspect is still alive. In the San Bernardino case, law enforcement could not even first try to compel a passcode from the suspect because the suspect was deceased. In this case, investigators have a person to ask.
Initially, a trial judge denied the state’s motion to compel the suspect to give up his phone’s passcode. However, last week the Florida Court of Appeal’s Second District reversed that finding, determining that the passcode itself is not connected to any criminal data found on the phone.
“The information sought by the State, that which it would require [the defendant] to provide, is the passcode,” the opinion [PDF] reads.
“The state has not asked [him] to produce the photographs or videos on the phone … By providing the passcode, [he] would not be acknowledging that the phone contains evidence of video voyeurism. Moreover, although the passcode would allow the State access to the phone, and therefore to a source of potential evidence, the State has a warrant to search the phone — the source of evidence had already been uncovered.”
Other courts, in recent years, have held the opposite. In 2014, a different court in Virginia found that making someone tell you their passcode can be forcing them into self-incrimination, and that the Fifth Amendment protects against that.
Similarly, a U.S. District Court in Michigan held the same position in 2010, saying that forcing someone to provide a passcode qualifies as testimony because it requires the suspect to “communicate knowledge” that they have.
Those rulings have separated passcodes from now-common fingerprint-based phone locks. The court in Virginia, as well as another in California, have ruled that basically, something you know is different from something you have or are. So fingerprints can be compelled for phone locks the same as they can be for, well, fingerprint checks, or in the same way as one can compel handwriting or voice samples, the argument goes.
(And in fact, earlier this year, the Justice Department issued a warrant that let investigators in California walk into a building and make everyone on the property use their fingerprints to unlock their phones.)
The Florida court, in part, uses the whole fingerprint thing as a reason why this suspect should be compelled to provide his passcode.
“We are not inclined to believe that the Fifth Amendment should provide greater protection to individuals who passcode protect their iPhones with letter and number combinations than to individuals who use their fingerprint as the passcode,” the opinion continues. “Compelling an individual to place his finger on the iPhone would not be a protected act; it would be an exhibition of a physical characteristic, the forced production of physical evidence, not unlike being compelled to provide a blood sample or provide a handwriting exemplar.”
“This is a case of surrender and not testimony,” it concludes.
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