FOR IMMEDIATE RELEASE
January 8, 2021
CONTACTS:
Abdullah Hasan, ACLU, ahasan@aclu.org
Rebecca Jeschke, EFF, Rebecca@eff.org
Robert L. Tarver, Jr., Tarver Law Offices, tarverlaw@comcast.net
WASHINGTON – The American Civil Liberties Union (ACLU) and the Electronic
Frontier Foundation (EFF), along with New Jersey-based Tarver Law Offices,
are urging the U.S. Supreme Court to ensure the Fifth Amendment protection
against self-incrimination extends to the digital age by prohibiting law
enforcement from forcing individuals to disclose their phone and computer
passcodes.
“The Fifth Amendment protects us from being forced to give police
a combination to a wall safe. That same protection should extend to our
phone and computer passwords, which can give access to far more sensitive
information than any wall safe could,” said
Jennifer Granick, ACLU surveillance and cybersecurity counsel. “The Supreme Court should take this case to ensure our constitutional
rights survive in the digital age.”
In a petition filed Thursday and first reported by The Wall Street Journal,
the ACLU and EFF are asking the U.S. Supreme Court to hear
Andrews v. New Jersey. In this case, a prosecutor obtained a court order requiring Mr. Robert Andrews to disclose
passwords to two cell phones. Mr. Andrews fought the order, citing his
Fifth Amendment privilege. Ultimately, the New Jersey State Supreme Court
held that the privilege did not apply to the disclosure or use of the
passwords.
“There are few things in constitutional law more sacred than the
Fifth Amendment privilege against self-incrimination,” said
Mr. Andrews’ attorney, Robert L. Tarver, Jr.“Up to now, our thoughts and the content of our minds have been protected
from government intrusion. The recent decision of the New Jersey Supreme
Court highlights the need for the Supreme Court to solidify those protections.”
The U.S. Supreme Court has long held, consistent with the Fifth Amendment,
that the government cannot compel a person to answer a question whose
answer could be incriminating. Lower courts, however, have disagreed on
the scope of the right to remain silent when the government demands that
a person disclose or enter phone and computer passwords. This confusing
patchwork of rulings has resulted in Fifth
Amendment rights depending on where one lives, and in some cases, whether
state or federal authorities are the ones demanding the password.
“The Constitution is clear: no one ‘shall be compelled in any
criminal case to be a witness against himself,’” said
EFF Senior Staff Attorney Andrew Crocker. “When law enforcement requires you to reveal your passcodes, they
force you to be a witness in your own criminal prosecution. The Supreme
Court should take this case to settle this critical question about digital
privacy and self-incrimination.”
The petition is here:https://www.aclu.org/legal-document/andrews-v-state-new-jersey-petition-writ-certiorari.