Darren Chaker on the Fifth Amendment and Passwords

Can the Government Force You to Unlock Your Phone? This is one of the most contested questions in digital privacy law. The Fifth Amendment protects against compelled self-incrimination, but courts have reached different conclusions about whether providing a password or biometric unlock constitutes testimonial evidence. The core legal issue is the foregone conclusion doctrine. If the government already knows the contents of a device exist and can authenticate them independently, some courts have ruled that compelling a password does not add any new testimonial value. Other courts disagree, finding that the act of producing a password inherently communicates that the suspect knows the password and has control over the device. How Have Courts Ruled? Case Jurisdiction Ruling Riley v. California (2014) U.S. Supreme Court Warrant required to search phone In re Search of Residence (2017) 10th Circuit Compelled decryption may violate Fifth Amendment State v. Stahl (2016) Florida Supreme Court