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Does the Fifth Amendment Apply to Cell Phone Passcodes?

We've all heard the defense, "I plead the fifth!" But what exactly does the Fifth Amendment in the U.S. Constitution mean for the accused? The statement of "pleading the fifth" simply means that someone accused of a crime has a right to not self-incriminate by saying something that could be used against them in a court of law. In other words, the U.S. Bill of Rights protects individuals from being compelled to be witnesses against themselves. Usually, this means that if you are arrested, you do not have to say anything to law enforcement regarding your involvement in the crime, and you will not be required to testify on the stand at your own trial. However, with modern technology such as smart phones containing so much personal information these days, how are the courts handling the possibility that a defendant's iPhone, locked by personal passcode, may contain information that could incriminate him/her?

The "I Forgot" Defense

Several cases have popped up around Florida that have prompted a national discussion on whether being compelled to provide your cell phone passcode to a judge constitutes an appropriate ask for evidence on behalf of the courts, or if your right to "forget" your passcode is protected by the Fifth Amendment.

Some will argue that you cannot actually prove if someone has forgotten a code or not, and therefore, a defendant cannot be held in contempt of court for not complying by handing over the code because to forget something is inside a person's thoughts, and cannot be accurately proven. Others, however, will claim that asking for a passcode is similar to asking for a safety deposit key, and that an individual should be in contempt of court for not complying with the request for evidence from a judge or law enforcement.

Florida Cases with Different Rulings

Two recent cases with different outcomes have brought this issue to light. In one case, a man named Christopher Wheeler was arrested for aggravated child abuse. Police claim that there is photographic evidence of the alleged crimes on his Android phone. However, when they asked him to provide his passcode, the code he gave them was incorrect. He swore under oath that it was the code, but was held in contempt of court and sentenced to 180 days in jail for not providing the correct code. The judge informed him that the contempt charges would go away once he provides the correct code.

In another case, Florida man, Wesley Victor, and his girlfriend have been charged with extortion of social media star, YesJulz for threatening to release sex tapes of hers unless she made payments to them. A judge ordered both Victor and his girlfriend to provide passcodes for cell phones of theirs that the judge believes contain text messages that prove the two colluded to extort YesJulz. Victor simply stated that he did not remember his passcode because it had been 10 months since his initial arrest. The judge ruled that he could not hold Victor in contempt of court because there was no way to actually prove that Victor could not remember the passcode.

The Florida Supreme Court has not ruled on the passcode dilemma, leaving the right to forget up to the individual cases and judges. Both of the mentioned cases highlight the fact that the lines are blurry between what is included in your Fifth Amendment rights of not self-incriminating, and what can be used in a court as physical evidence against you.

If you are accused of a crime, and you are asked for your passcodes, it's extremely important that you contact an experienced criminal defense attorney. Your attorney will help you make the best decisions for your case based on your rights as an accused person.

References:

Why 'I forgot my password' won't go down well with a judge. (2017, June 05). Retrieved June 06, 2017, from https://nakedsecurity.sophos.com/2017/06/05/why-i-forgot-my-password-wont-go-down-well-with-a-judge/

David Kravets - May 29, 2017 1:00 pm UTC. (2017, May 29). Is "I forget" a valid defense when court orders demand a smartphone password? [Update]. Retrieved June 06, 2017, from https://arstechnica.com/tech-policy/2017/05/jail-looms-large-for-suspects-ordered-to-reveal-forgotten-passwords/

Ovalledovalle@miamiherald.com, D. (n.d.). Miami reality TV star must explain why she can't unlock Phone in sextortion case. Retrieved June 06, 2017, from http://www.miamiherald.com/news/local/crime/article151116692.html

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