In Commonwealth v. Davis, No. 56 MAP 2018 (Pa. Nov. 20, 2019), the Supreme Court of Pennsylvania, in a 4-3 ruling, overturned a lower-court order that required a criminal suspect to turn over a 64-character password to his computer, concluding that “compelling the disclosure of a password to a computer, that is, the act of production, is testimonial” and rejecting the Commonwealth’s argument that provision of the password was a foregone conclusion, finding that “the prohibition of application of the foregone conclusion rationale to areas of compulsion of one’s mental processes would be entirely consistent with” US Supreme Court decisions.
In this case involving alleged child-pornography activities, agents of the Office of Attorney General (“OAG”) executed a search warrant at Appellant’s apartment based upon a video found to contain child pornography being shared via a peer-to-peer file-sharing network (eMule) from an IP address associated with the appellant. At Appellant’s apartment, after the agents discovered a single computer, an HP Envy 700 desktop, which was encrypted with TrueCrypt, Appellant informed the agents that he lived alone, that he was the sole user of the computer, and that only he knew the password to his computer. When the agent requested that Appellant provide him with the password to the computer, he responded: “It’s 64 characters and why would I give that to you? We both know what’s on there. It’s only going to hurt me. No f*cking way I’m going to give it to you.” Appellant was charged with two counts of disseminating child pornography in violation of 18 Pa.C.S. § 6312(c), and two counts of criminal use of a communication facility in violation of 18 Pa.C.S. § 7512(a).
On December 17, 2015, the Commonwealth filed with the trial court a pre-trial motion to compel Appellant to divulge the password to his HP 700 computer. Appellant responded by invoking his right against self-incrimination. The trial court focused on the question of whether the encryption was testimonial in nature, and, thus, protected by the Fifth Amendment. Applying the foregone conclusion exception, the trial court determined that the information the Commonwealth sought from Appellant was a foregone conclusion, in that the facts to be conveyed by Appellant’s act of production of his password already were known to the government. As, according to the trial court, Appellant’s revealing his password would not provide the Commonwealth with any new evidence, and would simply be an act that permitted the Commonwealth to retrieve what was already known to them, the foregone conclusion exception was satisfied. A three-judge panel of the Superior Court later affirmed that ruling, leading to appeal to the Pennsylvania Supreme Court.
In the majority opinion written by Justice Debra Todd, she wrote:
“Based upon these cases rendered by the United States Supreme Court regarding the scope of the Fifth Amendment, we conclude that compelling the disclosure of a password to a computer, that is, the act of production, is testimonial. 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. Indeed, a password to a computer is, by its nature, intentionally personalized and so unique as to accomplish its intended purpose — keeping information contained therein confidential and insulated from discovery. Here, under United States Supreme Court precedent, we find that the Commonwealth is seeking the electronic equivalent to a combination to a wall safe — the passcode to unlock Appellant’s computer. The Commonwealth is seeking the password, not as an end, but as a pathway to the files being withheld. As such, the compelled production of the computer’s password demands the recall of the contents of Appellant’s mind, and the act of production carries with it the implied factual assertions that will be used to incriminate him. Thus, we hold that compelling Appellant to reveal a password to a computer is testimonial in nature.”
Judge Todd also, after commenting on several US Supreme Court rulings, stated “the prohibition of application of the foregone conclusion rationale to areas of compulsion of one’s mental processes would be entirely consistent with the Supreme Court decisions, surveyed above, which uniformly protect information arrived at as a result of using one’s mind. To broadly read the foregone conclusion rationale otherwise would be to undercut these pronouncements by the high Court.”
Judge Max Baer offered the dissenting opinion, stating: “In my opinion, the compulsion of Appellant’s password is an act of production, requiring him to produce a piece of evidence similar to the act of production requiring one to produce a business or financial document”. He also stated: “Under the majority’s reasoning, the compelled production of documents would be tantamount to placing the defendant on the stand and requiring him to testify as to the location of the documents sought. The mere fact that Appellant is required to think in order to complete the act of production, in my view, does not immunize that act of production from the foregone conclusion rationale.”
Nonetheless, by a 4-3 vote, the Pennsylvania Supreme Court reversed the order of the Superior Court and remanded the matter to the Superior Court, for remand to the trial court, for proceedings consistent with the majority Opinion.
Here’s a case from earlier this year with a different result.
So, what do you think? Should defendants be ordered to provide their passcodes, even if it leads to incriminating evidence against them? Please let us know if any comments you might have or if you’d like to know more about a particular topic.
Case opinion link courtesy of eDiscovery Assistant.
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