ArgumentsVictory: Pennsylvania Supreme Court Rules Police Can’t Force You to Tell Them Your Password

The Pennsylvania Supreme Court issued a forceful opinion on Wednesday holding that the Fifth Amendment to the U.S. Constitution protects individuals from being forced to disclose the passcode to their devices to the police. In a 4-3 decision in Commonwealth v. Davis, the court found that disclosing a password is “testimony” protected by the Fifth Amendment’s privilege against self-incrimination.

Andrew Crocker writes for EFF that

Crucially, the court held that the narrow “foregone conclusion exception” to the Fifth Amendment does not apply to disclosing passcodes. As described in our brief, this exception applies only when an individual is forced to comply with a subpoena for business records and only when complying with the subpoena does not reveal the “contents of his mind,” as the U.S. Supreme Court put it. (For more on the foregone conclusion exception, see this post on a similar case currently pending in the Indiana Supreme Court.) 

Crocker adds:

This ruling is vital because courts must account for how constitutional rights are affected by changes in technology. We store a wealth of deeply personal information on our electronic devices. The government simply should not put individuals in the no-win situation of choosing between disclosing a password—and turning over everything on these devices—or instead defying a court order to do so.

At least two other state supreme courts, in Indiana and New Jersey, are considering similar cases.