Top NJ Court Mines 5th Amendment for Password Privacy

TRENTON, N.J. (CN) — Attorneys argued before New Jersey’s highest court Tuesday that people should not be compelled to unlock their phones for law enforcement.

“Cellphones do not fit neatly under existing precedent,” said Megan Iorio, appellate advocacy counsel at Electronic Privacy Information Center.

“They really are an extension of the contents of a user’s mind, both by the information that they gather and their relation to the user.”

The rights group for the digital age intervened in the case where Robert Andrews faces six obstruction and misconduct charges related to an alleged drug-trafficking operation after he refused to unlock his phone.

A New Jersey appeals court ruled against Andrews in 2018, but Charles Sciarra, an attorney for Andrews with the firm Sciarra & Catrambone, contends that the Fifth Amendment right to withhold incriminating testimony is at stake.

“I would suggest to the court that we don’t trash the Fifth Amendment because technology is moving forward,” Sciarra said.

Tuesday’s arguments took on a visionary tone as both justices and attorneys expressed a keen awareness that technology is changing much faster than the law, and that fundamental rights should not be left behind in the scramble.

“Cellphones are becoming an extension of our memory, our recollection — and there’s a private enclave argument with regard to that,” said Sciarra.

“When the state says that, ‘A passcode is nothing more than a sequence of numbers,’ I disagree,” he said later. “I think it’s a very specific sequence of numbers [that] must be generated from someone’s thought process, from the contents of their brain.”

The Fifth Amendment forbids compelling a defendant to disclose the contents of his mind.

The court also raised questions about biometrics. Phones can now be unlocked with technologies like facial recognition and fingerprinting, which — since they are not contents of the mind — might be treated differently under the law than the typing of a passcode.

Justice Jaynee LaVecchia pointed out that the face and the fingerprints are in the public domain, but a passcode is not.

Public defender Elizabeth Jarit argued that the state forcing a defendant to put on a blouse, or give a fingerprint, are different than forcing him to type in a passcode and in so doing reveal the contents of his mind.

Electronic Frontier Foundation senior staff attorney Andrew Crocker questioned why the state could not simply serve a warrants on content providers like Facebook Messenger and Google rather than demand password help from suspects.

“There’s a number of avenues for getting evidence,” he said.

“There’s just no case law that compels defendants to play this role” of helping prosecutors by giving over a phone passcode, Croker also said.

Christopher Keating, speaking for the New Jersey State Bar Association, said the state law protects criminal defendants from being compelled to reveal their cell phone passcodes. They shouldn’t have to solve the puzzle for law enforcement, he said.

The justices did not immediately issue a decision.

%d bloggers like this: