Petitioners including ACLU say passcodes are protected by the Fifth Amendment; prosecutors disagree

Technology companies and law enforcement have been in a tug of war over
enabling government access to the content on personal devices.
PHOTO: DAVID PAUL MORRIS/BLOOMBERG NEWS

By Robert McMillan
Jan. 8, 2021 1:21 pm ET

Two civil-liberties groups are asking the U.S. Supreme Court to rule on an increasingly relevant digital-privacy question: Do Americans have a constitutional right to keep their passwords and passcodes secret?

It’s a thorny legal issue, and one that is unsettled in the U.S., according to lawyers at the American Civil Liberties Union and the Electronic Frontier Foundation, who on Thursday filed a petition with the Supreme Court asking it to decide the matter once and for all.

The initiative is the latest twist in a tug of war between technology companies, which have radically increased the security of their products over the past decade, and law enforcement authorities, who have increasingly relied on digital evidence to make their cases.

Five years ago, the Justice Department tried to compel Apple Inc. to develop a way for law enforcement to access locked iPhones, but it later abandoned the quest. Investigators currently rely on private companies that essentially hack into the phones as a way to uncover the data inside.

Most states haven’t decided the password matter, said Jennifer Granick, a lawyer with the ACLU. So while U.S. law is clear that the police can’t force suspects to divulge the combination to a safe, for example, that’s not the case when it comes to an iPhone passcode. “It’s ambiguous almost everywhere,” she said.

And the state rulings are contradictory, Ms. Granick said. In Pennsylvania, the State Supreme Court has decided that law enforcement cannot force you to divulge a passcode. But the New Jersey State Supreme Court ruled in the opposite direction in August in a case involving a Newark Sheriff’s officer named Robert Andrews.

In 2016, Mr. Andrews was charged with tipping off members of a narcotics ring with information about an investigation. Police wanted access to two of Mr. Andrews’s iPhones, but he refused to hand over his passcodes, according to his lawyer Robert Tarver, who joined the petition filed Thursday.

Mr. Andrews, who maintains his innocence, has no obligation to give investigators access to the complete contents of his phones, which might contain private or embarrassing material, Mr. Tarver said. “Why would the government have a right to that information?” he said. The case is still being adjudicated and Mr. Andrews hasn’t turned over his passcodes, Mr. Tarver said.

In their petition, Mr. Tarver, the EFF and the ACLU argue that Mr. Andrews’s passcodes are protected by the Fifth Amendment and that when suspects are compelled to provide a passcode, they are essentially being forced to provide testimony against themselves.

The Essex County Prosecutor’s Office, which is prosecuting Mr. Andrews, says the New Jersey Supreme Court made the right decision. “Access to text messages and other cellphone data, obtained with a search warrant and under the scrutiny of a judge, provide the kind of high-quality evidence jurors in Essex county expect,” acting Essex County Prosecutor Theodore N. Stephens II said in an emailed statement.

The Supreme Court could decide to hear the case within the next few months. If they were to rule, it would settle the matter once and for all, Mr. Tarver said.

Write to Robert McMillan at Robert.Mcmillan@wsj.com