The authorities can legally order criminal defendants to swipe the pattern or punch in the passcode needed to unlock their cell phone, the Oregon Supreme Court has ruled.
In an unanimous opinion written by Chief Justice Martha L. Walters, Oregon’s top court found that police may only order a phone unlocked after receiving a search warrant and proving, beyond a reasonable doubt, that they already know what will be found inside the digital trove.
“When the state has obtained a warrant that permits it to search a cell phone, the state will have been required to describe, with reasonable particularity, the evidence that it believes is on the phone and its relevance to the state’s investigation,” according to the 37-page opinion published Jan. 28.
I believe this decision is incorrect, and I would not be surprised if it made its way to the US Supreme Court. The ACLU and EFF friend of the court brief got it right:
Lawyers for Pittman argued the order violated the Oregon Constitution and the Fifth Amendment, which protects people from being forced to incriminate themselves. The argument was buoyed by a number of prominent supporters, including the American Civil Liberties Union and the Electronic Frontier Foundation.
“Encryption may impose obstacles to law enforcement in particular cases. So do window shades. It is sometimes true that constitutional protections interfere with law enforcement investigations,” the organizations wrote in a friend of the court brief. “Constitutional protections must be maintained, if not strengthened, in the digital age.”
But the Supreme Court noted in their ruling that certain incriminating actions, such as revealing a distinctive tattoo or trying on a piece of clothing, can already be ordered by a judge. Justice Walters determined that in all future cases the act of unlocking cannot be used against the defendant, though the contents of the phone can.
Here’s what the court gets wrong: incriminating actions like “revealing a distinctive tattoo” do not implicate the thoughts or speech of a defendant. The court’s examples are those of compelled physical activity, which is fine. A defendant can be fingerprinted, for example, and police can legally compel compliance. Similarly, police should be able to compel a defendant’s fingerprint to unlock an iPhone secured with TouchID or compel a defendant to look at the phone camera to unlock the device via FaceID. These are physical acts.
Entering a passcode is different, and here’s why: It requires thought—knowledge that’s in my head—and law enforcement is forcing me to reveal what I know when what I know may incriminate me. That is almost definitionally a Fifth Amendment violation, the relevant section being this:
[No person] shall be compelled in any criminal case to be a witness against himself…
Historically, the rationale for a protection like the Fifth Amendment is that if police could compel a defendant to testify against himself and if that testimony was legally permissible, the police could torture defendants until they got the answer they wanted. Indeed, originally under common law a confession obtained by torture was admissible. By the 18th century English common law deemed such confessions inadmissible and this was incorporated into American law.
There is no settled case law around passwords at the federal level. Lower courts have given conflicting decisions. If this is not the case then some case like it calls for adjudication by the US Supreme Court. There is clearly a constitutional question and there is no settled case law on the matter.
For those who believe this decision to be morally wrong, my best suggestion when confronted by law enforcement is to turn off your iPhone before they can take possession. Upon reboot neither TouchID nor FaceID will work; your passcode will be required to unlock the phone. If you have a weak passcode, law enforcement will be able to break into the phone; a longer passcode (over 6 characters) means that they probably will be unable.
In Oregon, if you refuse to provide the passcode the legal process will end up with you being held in contempt of court. Whether what you have on your phone is worth that or whether it’s worth it to you to make a moral point, I can’t answer. All I can say for now is that I believe that the Oregon Supreme Court has gotten this wrong.