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Attorneys Challenges Police Effort to Force Users to Disclose Phone Pass Codes in Violation of Fifth Amendment Right to Remain Silent

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Published on: February 25, 2021

WASHINGTON, D.C. — In a case that tests the limits of digital privacy, The Rutherford Institute has asked the U.S. Supreme Court to block an attempt by the government to force Americans to allow police carte blanche access to the contents of their cell phones and electronic devices by disclosing their pass codes. In an amicus curiae brief in Andrews v. State of New Jersey filed in conjunction with The Cordell Institute of Washington University and Americans for Prosperity, The Rutherford Institute and its partners warn that the government’s efforts to strong-arm individuals into disclosing the pass codes for their electronic devices violates the clear purpose of the Fifth Amendment, which guards against self-incrimination. The coalition’s brief argues that a ruling by the New Jersey Supreme Court, which cited a “foregone exclusion exception” to the Fifth Amendment, flies in the face of the Supreme Court’s unequivocal recognition that exposing the contents of a cell phone or computer to the government is more harmful to privacy than even the most exhaustive search of a house. This case represents the latest attempt by police agencies to gain access to encrypted electronic devices by forcing users to disclose pass codes or unlock the devices with biometric identifiers such as facial scans or fingerprints.

“The Fifth Amendment was intended to guard against government attempts to overreach its authority,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Paramount among the rights enshrined in the Fifth Amendment is the right to remain silent and not be forced to assist the government or any of its agents in prosecuting oneself.”

In 2015, Robert Andrews, a police officer with the Essex County (N.J.) Sheriff’s Office, was accused of passing information about a narcotics investigation to the suspect. Investigators arrested Andrews and seized his iPhones, believing they contained calls, text messages and other information relayed to the suspect about how to avoid prosecution. However, investigators were unable to unlock Andrews’ phones without his pass code. At trial, state prosecutors filed a motion to compel Andrews to divulge the pass codes for his iPhones so that they could access the information stored on the phones. Andrews objected to the motion, arguing that forcing him to divulge the pass codes would violate the guarantee against compelled self-incrimination contained in the Fifth Amendment to the U.S. Constitution. Although the trial court acknowledged that the information Andrews kept on the phone might incriminate him, it ruled that he could be forced to provide the pass codes because it was a “foregone conclusion” that the evidence was present on the phone, and Andrews had no right to withhold access to that evidence. The ruling was appealed twice, but in each case, the courts affirmed the “foregone conclusion exception,” concluding that there is no significant act of self-incrimination in forcing Andrews to reveal the passcodes. Andrews filed a petition with the U.S. Supreme Court requesting that the court review and reverse the decision because it is in conflict with other decisions around the country ruling that forced disclosure of pass codes does violate the Fifth Amendment. In an amicus brief supporting Andrews’ request for review, The Rutherford Institute and its coalition partners argue that compelled decryption of digital devices violates the Fifth Amendment’s fundamental purpose by compelling an accused to choose between self-incrimination through decryption or contempt for failing to comply.

The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.

The amicus brief in Robert Andrews v. State of New Jersey

Article posted with permission from John Whitehead

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