A Florida state appellate court has ruled that an inebriated teenager involved in a car crash that resulted in the death of another person cannot be compelled to provide a passcode to his iPhone 7—the boy can indeed invoke a Fifth Amendment privilege, protecting him against self-incrimination.
The October 24 ruling in before the 4th District appellate court runs against a previous ruling by a sister court in a case known as .
In , which involved a man accused of taking “upskirt” photos in Sarasota, the court found in favor of the government and ordered the suspect to give up his password.
This district split—with two intermediate courts reaching different conclusions—now sets up a legal situation that could result in the Florida Supreme Court and, perhaps eventually, the Supreme Court of the United States to rule definitively on the issue.
On the federal level in 2012, the 11th US Circuit Court of Appeals (which covers Florida) ruled that forced decryption did constitute a violation of a defendant’s Fifth Amendment rights. In 2013, a federal judge refused to force a Wisconsin child-pornography suspect to decrypt his laptop. Overall, cases involving decryption are still relatively new and rare. The first-known instance only dates back to 2007.
The decision by 4th District was applauded by a number of attorneys, including Brett Max Kaufman of the American Civil Liberties Union.
“I think you might look at at it as a turning of the tide,” he told Ars.
“Right to remain silent”
As the Fourth District summarized, the case involves a minor (known as G.A.Q.L.) who was “speeding when he crashed.” At the hospital, medical staff ran a blood alcohol content test and found that his measured level was a 0.086, which is over the legal limit.
Police obtained a search warrant for G.A.Q.L.’s car and found two iPhones. One belonged to a female passenger who survived the crash. She told police “that the group had been drinking vodka earlier in the day and that she had been communicating with the minor on her iPhone” over Snapchat and text messages.
The second phone—an iPhone 7—belonged to G.A.Q.L., and police obtained a warrant to search it. However, unable to execute this search, authorities then went to court seeking a judicial order that would have forced the minor to provide a passcode for the phone itself and also a password for the relevant iTunes account.
Investigators argued that they needed the iTunes password so that the phone’s firmware could be updated prior to actually searching the phone. (The court record does not reflect what iOS version number was on the phone.)
Lawyers representing G.A.Q.L. argued that disclosing these passwords “violated his rights under the Fifth Amendment.”
The panel of judges found this persuasive, dismissing the “the foregone conclusion” exception to the Fifth Amendment. This legal doctrine posits that, if the government already knows the testimony that will be obtained, then the Fifth Amendment cannot be a shield.
As Ars has reported previously, forced decryption is far from settled law. As recently as August 21, a state appellate court in Indiana ruled that forcing a defendant to provide a passcode was, in fact, testimonial.
Meanwhile, a former Philadelphia police officer has remained in custody for over three years for refusing to decrypt a seized hard drive that authorities believe contains child pornography.
One attorney in private practice in Los Angeles who has written extensively about this issue, Dan Terzian, told Ars that this decision was “incredible.” He wrote:
There [are] two ways to force someone to decrypt their phone: demanding the password or demanding the unlocked device. Both get you the same result. But they’re technically different. And technicalities can matter in constitutional law. “You have the right to remain silent” is a bedrock of our constitutional and pop culture. And adding an asterisk to that—except you have to tell us your password—seems fundamentally counter to what the Fifth Amendment stands for. adds this password exception. And I think it’s wrong for that.
As Terzian concluded: ” is incredibly important because it recognizes that this password exception does not and should not exist in our law.”
Similarly, Brian Owsley—a law professor at the University of North Texas and a former federal magistrate judge—found this decision to be “better reasoned than .”
But, he wondered, why was this legal showdown even necessary?
“I also wonder why the prosecution did not try to get records directly from the providers. In other words, they could have issued subpoenas for records from Snapchat and the text message provider,” he emailed Ars. “Similarly, they could have sought the text messages from the surviving passenger. It is curious that they did not, especially from the providers who have no personal interest in the prosecution.”