PASSWORD UNPROTECTED: COMPELLED DISCLOSURE OF CELLPHONE PASSWORDS AND THE FOREGONE CONCLUSION EXCEPTION.

• Author: Edmonson, Andrew

1. INTRODUCTION 118 II. THE FIFTH AMENDMENT, NOT THE FOURTH 120 III. THE HISTORY OF THE FOREGONE CONCLUSION EXCEPTION 123 IV. ATTEMPTS AT EXPANDING THE FOREGONE CONCLUSION EXCEPTION 128 A. Federal Courts 129 B. State Courts 131 V. WHY THE FOREGONE CONCLUSION EXCEPTION SHOULD NOT BE APPLIED TO SMARTPHONE PASSWORDS 136 A. The Uniqueness of Smartphones 136 B. Workability 139 C. Limiting Expansion of the Exception so it Does Not Swallow the Rule 142 VI. CONCLUSION 146 INTRODUCTION

   In May and June of 2015, the Essex County Prosecutor's Office investigated a suspected narcotics-trafficking network in Newark, New Jersey, targeting a man named Quincy Lowery. (1) During the course of the investigation, the target revealed that he received assistance from an officer in the Essex County Sheriff's Office, later identified as Robert Andrews. (2) Upon Lowery's arrest, Andrews turned over his two smartphones to Internal Affairs but refused to consent to a device search. (3)

   After indicting Andrews on six charges relating to interference with the narcotics investigation, the State filed a motion to compel Andrews to disclose his smartphone passwords. (4) Although the State said that it had call records showing 187 phone calls between Andrews and Lowery in the thirty days before Lowery's arrest, the records did not show the duration of the calls. (5) Also, the State said that there were numerous text messages on Lowery's phone, consisting of messages between himself and Andrews, that the State was unable to access because Andrews instructed Lowery to reset the phone. (6)

   Andrews did not dispute the search warrants issued for his smartphones nor did he argue that his Fourth Amendment rights were violated in any way. (7) Instead, Andrews argued that the State violated his Fifth Amendment right against self-incrimination by compelling him to disclose his smartphone passwords. (8) The trial court disagreed with Andrews and granted the State's motion. (9) Both the appellate court and state supreme court affirmed the decision. (10) A key part of the decisions involved what is known as the foregone conclusion exception. (11)

   The United States Supreme Court created the foregone conclusion exception in 1976. (12) Under the exception, the Fifth Amendment does not protect against the compelled production of documents if "[t]he existence and location of the papers are a foregone conclusion." (13) The Government can establish that a foregone conclusion exists by demonstrating that it knows that: (1) the documents exist; (2) the defendant has access to the documents; and (3) the documents can be independently authenticated. (14)

   This Note will cover the origins of the foregone conclusion exception, the ways that modern courts have tried to expand the application of the exception from document production to smartphone and computer passwords, and ultimately argue why the exception should not be applied to such cases. Part I summarizes the Fifth Amendment and the protections it offers against self-incrimination in testimonial acts and communications. Part I also briefly explains why, despite the facts of the cases involving the search or seizure of electronic devices, the courts focus their analyses on the Fifth Amendment and not the Fourth.

   Part II explains how the foregone conclusion exception was created to fit into Fifth Amendment jurisprudence in the realm of document production and highlights the limited number of Supreme Court cases that have applied the exception since its creation.

   Part III discusses the recent split between jurisdictions regarding how the foregone conclusion exception could be expanded to apply to the compelled production of passwords to electronic devices, namely smartphones, and whether the exception should apply at all.

   Part IV analyzes the different interpretations of the foregone conclusion exception and explains why courts, including the that of Andrews, were wrong to expand the exception to smartphone passwords.

2. THE FIFTH AMENDMENT, NOT THE FOURTH

   The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...." (15) Law enforcement cannot search a location or seize a person or their belongings without a warrant "particularly describing the place to be searched, and the persons or things to be seized." (16) These protections also apply to modern devices like cell phones. (17)

   Despite these protections, privacy measures on modern phones give rise to a new question: although the search of a smartphone and its contents may be subject to a lawfully issued warrant, and therefore a valid search under the Fourth Amendment, is disclosure of the password (18) to a smartphone protected by the Fifth Amendment? (19)

   The shift in the analysis from the Fourth to the Fifth Amendment is mainly due to the Fifth Amendment's protection of testimonial communications. The Fifth Amendment states that no person "shall be compelled in any criminal case to be a witness against himself...." (20) However, this right against self-incrimination only applies to testimonial communications. (21)

   To be considered testimonial, a communication must "require an individual 'to disclose any knowledge he might have' or 'to speak his guilt.'" (22) Communications that disclose facts to the State can be contrasted with physical communications, such as handwriting, voice, or DNA samples, or standing in a lineup and wearing specific clothing. (23)

   In recent years, some courts have held that compelling a defendant to use biometric features such as fingerprints to unlock a smartphone does not violate the Fifth Amendment because the features of a finger are physical, not testimonial, and therefore are not protected. (24) However, these interpretations vary by jurisdiction. (25)

   In addition to the use of biometric features, modern smartphones provide a host of privacy features to a user so they may choose how they wish to protect the contents of their device; these features can range from a simple finger swipe to iris scans. (26) Depending on which feature the user chooses, it may take anywhere from less than two minutes to twenty-five years for someone other than the owner to access a device and its contents. (27) As a result, law enforcement officials have increased efforts to compel defendants in disclosing device passwords. (28) This is where the Fifth Amendment comes in. Defendants have argued that such a compelled disclosure would be testimonial in nature and, therefore, are protected by the Fifth Amendment. (29)

   However, some state governments have argued that even if the compelled disclosure of a password constitutes a testimonial communication, it is not protected by the Fifth Amendment because the State already knows the information being conveyed, making it a foregone conclusion. (30) The exception has been used to make the same argument in both state and federal courts when extracting passwords from and decrypting computer drives. (31) The attempts to adapt the decades-old doctrine to modern technology is a somewhat recent development and a major departure from the initially limited application of the foregone conclusion exception.

3. THE HISTORY OF THE FOREGONE CONCLUSION EXCEPTION

   The foregone conclusion exception originated in the context of document production. In Fisher v. United States, the Supreme Court ruled that the compelled production of documents can be considered testimonial in nature, even if the documents themselves are not subject to constitutional protection. (32) In two consolidated cases, taxpayers who were under investigation by the Internal Revenue Service (IRS) transferred accounting documents to their attorneys. (33) After the IRS issued a summons to each respective attorney, both refused to comply, arguing in part that producing the documents was a testimonial communication and compelling such production violated their clients' Fifth Amendment rights. (34)

   The Third and Fifth Circuits split over whether the Fifth Amendment did in fact protect against producing the documents; thus, the Supreme Court consolidated the cases and granted certiorari. (35) The Court held that although the documents sought were not themselves protected by the Fifth Amendment, "[t]he act of producing evidence in response to a subpoena nevertheless has communicative aspects of its own, wholly aside from the contents of the papers produced." (36)

   Despite drawing this distinction between protection for the production of a document and the document itself, in Fisher, the Court held that the act of producing the documents in the cases at bar were not protected by the Fifth Amendment. (37) The Court held that "[t]he existence and location of the papers are a forgone conclusion and the taxpayer adds little or nothing to the sum total of the Government's information by conceding that he in fact has the papers. Under these circumstances by enforcement of the summons 'no constitutional rights are touched.'" (38) In both cases, the Court held that a foregone conclusion existed regarding the documents because the Government already knew with a reasonable degree of certainty that the documents existed, the defendant had access to the documents, and the documents could be independently authenticated. (39)

   According to the Court, a taxpayer admitting documents exist or that the taxpayer possesses documents does not pose a realistic threat of being self-incriminating, even if there is "some minimal testimonial significance" in producing them. (40) It is not illegal to talk to an accountant about tax returns, especially if one is under investigation by the IRS, or obtain advice or documents from an accountant, as none alone are self-incriminating. (41) Additionally, production of documents does not authenticate them, as the taxpayer did not prepare the documents and would not be able to verify the contents. (42) Because the prosecution would have to...