Whether the Self-Incrimination Clause of the Fifth Amendment protects an individual from being compelled to recall and truthfully disclose a memorized smartphone passcode, where communicating the passcode may lead to the discovery of incriminating evidence to be used against him in a criminal prosecution?

While investigating Robert Andrews for state criminal offenses, the NJ prosecutor obtained a court   order   requiring   Petitioner   to   disclose   his smartphone passcodes  to  two  iPhones.  The State of New Jersey  believes the  passcodes  will  enable  it  to  find evidence    that    Mr. Andrews    committed    a  crime.  Mr. Andrews refused to disclose his passwords, invoking his    Fifth    Amendment    privilege    against    self-incrimination. The Supreme Court of New Jersey held that the Fifth Amendment privilege does not protect him  from  being  compelled  to  communicate  his memorized passcodes to the government, ruling that the  privilege  was  overcome  because  the  passcodes’ existence,    possession,    and    authentication    were “foregone conclusions.”

With this petition on behalf of Mr. Andrews, the ACLU and the Electronic Frontier Foundation (EFF), along with New Jersey-based Tarver Law Offices, urge the U.S. Supreme Court to ensure the Fifth Amendment protection against self-incrimination extends to the digital age by prohibiting law enforcement from forcing individuals to disclose their phone and computer passcodes. The U.S. Supreme Court has long held, consistent with the Fifth Amendment, that the government cannot compel a person to answer a question whose answer could be incriminating. Lower courts, however, have disagreed on the scope of the right to remain silent when the government demands that a person disclose or enter phone and computer passwords. This confusing patchwork of rulings has resulted in Fifth Amendment rights depending on where one lives, and in some cases, whether state or federal authorities are the ones demanding the password. We hope that the Supreme Court will take this case to settle this critical question about digital privacy and self-incrimination.

Stay Informed