Passing on Passwords
A recent article in the NJ Law Journal (May 14, 2012, p. 3) piqued the Monitor’s interest as a harbinger of things to come. According to the article, as Morris County prosecutors were preparing to try a criminal defendant facing narcotics charges, they realized that law enforcement officers had seized several cell phones and a Blackberry at the time of the arrest. Interested in learning what information might be contained on these phones, prosecutors applied for and were granted a search warrant authorizing them to inspect the information contained in the phones. However, prosecutors and their investigatory staff apparently ran into trouble when they could not crack a password-protected Blackberry to review the information on it. Therefore, they sought an order compelling the defendant to provide them with the appropriate passcodes to enable them to access the information stored in the Blackberry.
Criminal defense attorney John Dell’Italia filed opposition papers, arguing that such an order would violate the defendant’s right to remain silent and compel him to become a witness against himself, a no-no in a criminal case. Although the trial judge denied the State’s motion, no written opinion was filed. Kudos to Mr. Dell’Italia for vigorously asserting his client’s constitutional right to remain silent.
The personal smartphone, whether it be a Blackberry, iPhone or some other electronic device, is the new medium of choice in which we store important information. Consequently, it is also understandably the focus of law enforcement when the smartphone belonging to a suspect comes into their possession. In a recent case, a federal law enforcement officer told me that at the time he arrested a narcotics trafficking suspect, he seized a Blackberry, and while he was looking at the Blackberry in his hand, he saw the phone being erased of its data through some remote operation. Although there is very scant New Jersey law on the subject, Mr. Dell’Italia nailed the argument on its head—while an accused has no privilege to alter or destroy evidence in an investigation, compelling an accused to disclose a password is testimonial in nature. It provides direct evidence that the accused had ownership, custody and control of the data contained in the smartphone. Providing a password authenticates the information contained in the smart phone and provides a powerful inference that the person providing the password had knowledge of the contents of the smartphone. Consequently, providing a password to protected data on a smartphone is not the same as providing a fingerprint or a voice exemplar, which courts have universally found to be non-testimonial in nature. Look for this issue to surface again.
The postings on this blog were created for general informational purposes only and do not constitute legal advice or a solicitation to provide legal services. Although we attempt to ensure that the postings are complete, accurate, and current as of the time of publication, we assume no responsibility for their completeness, accuracy, or timeliness. The information in this blog is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this information without seeking professional legal counsel.
This blog may contain links to independent third party websites and services, including social media. We provide these links for your convenience, and you access them at your own risk. We have no control over and do not monitor the content or policies (including privacy policies) of these third-party websites and have no responsibility for, and no liability with respect to, their content, accuracy, or reliability. Unless expressly stated, we do not endorse any of the linked websites or any product, service, or publication referenced herein or therein. We will remove a link to any site from this blog upon request of the linked entity.
We grant permission to readers to link to this blog so long as this blog is not misrepresented. This site is not sponsored or associated with any other site unless so identified.
If you wish for Wilentz, Goldman & Spitzer, P.A., to consider representing you, please obtain contact information from the Contact Us area of this blog or go to the firm’s website at www.wilentz.com. One of our lawyers will be happy to discuss the possibility of representation with you. However, the authors of Wilentz blogs are licensed only in New Jersey and/or New York and do not wish to represent anyone who viewed this site in a state where the site fails to comply with all laws and ethical rules of that state.