Oregon Chief Justice Questions State's Cellphone Password Arguments

The Indiana Supreme Court ruled in June that individuals may refuse to unlock their phones for law enforcement to avoid self-incrimination (see 2006240015). Two months later, New Jersey's top court sided with the state (see 2001210053). Earlier, the Massachusetts Supreme Judicial Court sided with law enforcement, and the Pennsylvania Supreme Court supported individuals’ Fifth Amendment protections. SCOTUS distributed for Sept. 29 conference Pennsylvania’s cert petition appealing the latter decision, said an Aug. 12 entry in case 19-1254.

“It’s clearly a hot issue” that’s “percolating up through all the states, so I wouldn’t be surprised if the Supreme Court takes it at some point,” said EFF Senior Staff Attorney Andrew Crocker. It’s hard to predict because the high court takes “so few cases,” he cautioned. The Florida Supreme Court might take up another cellphone privacy case but hasn’t decided whether to review, noted Crocker, who watched the Oregon case Tuesday.

“We’re going to eventually need a Supreme Court decision” on police access to cellphones, a “huge issue” for law enforcement because “as technology changes our law enforcement’s access to things changes,” an NPA spokesperson said Wednesday. Police must balance protecting citizens’ rights with the safety of potential victims, and circumstances matter, she said. “If there’s a kidnapped child, that’s huge exigent circumstances,” but in other cases like white-collar crime, there’s more time to get a search warrant, she said. “We’re going to have to wait and see for this to work its way through the court system.” The debate’s practical effect is that law enforcement must “become very savvy when it comes to preparing a search warrant,” she said.

Pittman asks if the state's compelling someone to provide a passcode to an electronic device violates self-incrimination rights in the Fifth Amendment and Article I, Section 12 of the Oregon Constitution. Oregon argued the compelled act doesn't give the government additional information, triggering a “foregone conclusion” exemption. There are "no set timelines" for the Oregon Supreme Court to decide, emailed Michael Kron, Oregon Attorney General Office special counsel.

Catrice Pittman “is having to provide something that is incriminating,” Chief Justice Walters said. “The question is whether we should adopt a rule that permits that when the state does know the things that” the defense argues “are testimonial.” Defense argues “vociferously that there should be no test that allows this,” she said. “I’m asking ... if there is going to be a test, how it would work?”

The state seeks a rule that let police compel a person to enter a password without having to divulge it, said Jonathan Schildt, an Oregon assistant attorney general. Foregone conclusion applies if the state won’t learn anything of testimonial significance that adds to its case, he said. Police would have to show they’re “not relying on defendant’s memory,” Pittman’s attorney Ernest Lannet, chief defender for the Oregon Office of Public Defense Services Criminal Appellate Section, argued later. Walters replied, “Well, that would be a rule you can’t do it at all.”

‘Cruel Trilemma’

“There’s more testimony that knowing the password gives than just that the defendant knows the password,” Walters said to the state’s attorney. It also could “allow the inference that the defendant owns the phones and has access to the information on the phone.” Schildt disagreed. “I don’t think the beliefs that come from the act of password entry are anything more than, ‘I know the password,’” he said. “As long as the state can show that, it doesn’t need to show those other aspects such as ownership or that she knows what content is on the phone.”

If the compelled act is read as forcing Pittman “to use her mind to decrypt her phone ... the state would have to show it’s a foregone conclusion that the state already knew what was on the phone, but here there’s basically no knowledge about what exactly is on the phone,” Justice Lynn Nakamoto said later to Schildt. The state lawyer said that interpretation treats decryption like translation, but the phone -- not the individual -- is doing the decryption. “The person entering the password is just showing their knowledge of the password.” Walters replied, “They’re both doing it. The phone needed the password ... to decrypt.”

A person faces a “cruel trilemma” when forced to enter a password: a tough choice among self-incrimination, perjury or contempt, argued Lannet. Recalling a password is a mental exercise that also implies the person owns the phone, has access to it and knows what’s on it, he said.

Justice Adrienne Nelson asked if the password itself could be revealing. Yes, if the language reveals something personal about the person who chose it, replied Lannet. It doesn’t matter if the password itself isn't incriminating, “as long as it forms a link to incriminating evidence,” he said.

Justice Christopher Garrett asked if the defense would argue the same in a case where the police required someone to use a fingerprint or facial recognition to unlock the phone. Those are different because they don’t rely on memory, Lannet said. Justice Thomas Balmer interrupted, “Why should that make any difference at all?” Lannet replied, “Making someone divulge what’s in their mind is held to a higher order. There’s an absolute prohibition.”

EFF’s Crocker was heartened by the chief justice’s comments on what entering a password might convey and a person’s role in decryption. It’s “weird” to have one’s constitutional rights change based on which phone-unlock method the user chose, Crocker added. “This is a very unsettled area.”