PA Supreme Court: State Cannot Force You To Turn Over Password

Last week in a landmark ruling, the Pennsylvania Supreme Court found compelled disclosure of a password violative of the defendant’s Fifth Amendment right against self -incrimination.

In Commonwealth v. Davis, the Office of the Attorney General (“OAG”) executed a lawful search warrant on Davis’ apartment. Davis was being investigated on child pornography charges. Upon examination of his computer, the state found his computer had been wiped clean. The OAG executed another search warrant and found another computer at Davis’ apartment. This laptop contained information but was password protected, and Davis refused to disclose the password.

The Commonwealth filed a motion to compel Davis to disclose the password to his computer, but Davis claimed his Fifth Amendment right against self-incrimination. The trial court granted the Commonwealth’s motion to compel and the Superior Court affirmed. Davis then filed an interlocutory appeal to the Pennsylvania Supreme Court.

The Fifth Amendment does not protect the accused from producing evidence, “only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature.” Thus, the court lays out, that “[t]o invoke the Fifth Amendment privilege against the forced provision of information, a defendant must show (1) the evidence is self-incriminating; (2) the evidence is compelled; and (3) the evidence is testimonial in nature.”

While the Supreme Court of the United States (SCOTUS) has not spoken directly on whether or not computer passwords are testimonial, the Pennsylvania Supreme Court relied on SCOTUS’ reasoning in other cases to conclude the compulsion to disclose a computer password is testimonial in nature. Therefore, the production is protected under the Fifth Amendment. Specifically, the court said:

“Distilled to its essence, the revealing of a computer password is a verbal communication, not merely a physical act that would be nontestimonial in nature. There is no physical manifestation of a password, unlike a handwriting sample, blood draw, or a voice exemplar. As a passcode is necessarily memorized, one cannot reveal a passcode without revealing the contents of one’s mind.”

In sum, this ruling means police cannot compel you to give them a password to your computer as the disclosure is testimonial in nature and violative of your Fifth Amendment rights. The Pennsylvania Supreme Court ruling is a landmark victory for privacy rights that have been routinely ignored in Pennsylvania for years.

Contact us today to see how this ruling could affect you.