Remember when the federal government wanted to force Apple to create a backdoor that would circumvent the password protection on the iPhone of the San Bernadino shooter? Apple protested, saying that doing so would create a privacy nightmare for all of its customers. The federal government dropped the lawsuit, though, when a third party created a way to access the phone of Syed Rizwan Farook.
At the time, people were concerned about the privacy implications, but those concerns didn't involve forcing a suspect to reveal his or her password to authorities. After all, Farook was dead. He couldn't be forced to reveal anything.
In a current case, though, a judge has ordered that two defendants in an extortion case are required to tell their phone passcodes to authorities, an order which seems to fly in the face of the Fifth Amendment.
The case involves a social media celebrity who threatened to leak sexually explicit photos and videos of another social media celebrity unless she paid $18,000 within 24 hours.
Fitness model and Instagram star Hencha Voigt, 29, and her then-boyfriend Wesley Victor, 34, attempted to extort the money from "Snapchat Royalty" YesJulz, 27, whose real name is Julieanna Goddard.
Goddard provided law enforcement with text messages purported to be from Victor, who arrested Voigt and Victor the same day, and confiscated four cell phones believed to be used in the "sextortion" scheme.
However, authorities were not able to bypass the passcodes on Voigt's iPhone or Victor's BlackBerry. They filed a motion asking a judge to compel the suspects to reveal their passcodes.
Attorneys for the pair say that releasing the passwords is a violation of their Fifth Amendment rights. Remember, the Fifth Amendment grants a person the right to avoid self-incrimination: "No person shall be . . . compelled in any criminal case to be a witness against himself."
If investigators are looking for incriminating evidence on a person's cell phone, then it seems to follow that requiring a person to give the password that would allow investigators access to potentially incriminating information would be compelling someone to be a witness against himself.
However, a Florida judge, citing precedence from the Florida Court of Appeals, ordered that the defendants reveal their passcodes to authorities. In the precedent, a man was accused of taking upskirt photos of a woman before she noticed him and he ran away. At first, the suspect agreed to let authorities search his phone, but he later reneged. Officers could not access his phone because of the passcode, and a lower court affirmed that compelling him to do so would violate his Fifth Amendment rights. The trial judge cited U.S. Supreme Court Justice John Paul Stevens in a 1988 case:
"A defendant can be compelled to produce material evidence that is incriminating. But can he be compelled to use his mind to assist the prosecution in convicting him of a crime? I think not. He may in some cases be forced to surrender a key to a strongbox containing incriminating documents, but I do not believe he can be compelled to reveal the combination to his wall safe-by word or deed."
Prosecutors took the upskirt case to the Florida Court of Appeals, who ruled that giving a password to the phone wasn't the same as giving a combination to a wall safe at all. As such, they ordered the man to reveal his passcode.
Attorneys for Voigt and Victor say they are disappointed by the ruling against their clients, but not surprised--after all, once the precedent has been set by a higher court in the state, it's almost impossible to go against it. They expect that the issue of compelling a suspect or defendant to reveal a phone password will eventually reach the U.S. Supreme Court.
In the meantime, Victor has "forgotten" his passcode. His attorney says, "At the end of the day, I know he won't be able to produce a password. You can't compel somebody to say something they don't have."