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News / Nov 28, 2019

US Courts Uphold Individuals’ Privacy Rights Against Search of Their Digital Devices By Authorities

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 Article by Dotan Hammer

A suspect cannot be compelled to reveal a password to a personal device. The Pennsylvania Supreme Court held that the Fifth Amendment right against self-incrimination allows a suspect to withhold the password to his personal device.

The case concerned a suspect in a child-pornography investigation who refused to provide the investigators his 64-characters password to his personal computer. The Supreme Court turned the lower court’s decision that applied the “foregone conclusion” exception, according to which protections against self-incrimination don’t apply when the government already knows of the existence, location, and content of the sought-after material.

Whereas the lower court said the password was tantamount to a key or other tangible property and did not reveal the “contents” of the defendant’s mind, the Supreme Court stated that a disclosure of a password to a computer, is testimonial in its nature. The Supreme Court explained that one cannot reveal a passcode without revealing the contents of one’s mind, as a password to a computer is, by its nature, intentionally personalized and so unique as to accomplish its intended purpose―keeping information contained therein confidential and insulated from discovery.

The Supreme Court concluded that in this case, the investigators were seeking the password, not as an end, but as a pathway to the files being withheld. As such, the compelled production of the computer’s password demands the recall of the contents of the suspect’s mind, that will be used to incriminate him; and is thus testimonial in nature and protected under the Fifth Amendment to the US Constitution.

CLICK HERE to read the Pennsylvania Supreme Court’s decision.

Random searches of international travels’ devices violate the Fourth Amendment. The Federal District Court of Massachusetts has ruled that random searches of international travelers’ phones and computers by the government are unconstitutional and violate the fourth amendment, unless the government authorities have a specific suspicion to allow the search.

The case was brought by the American Civil Liberties Union and Electronic Frontier Foundation on behalf of 11 travelers. The court ruled that both of the current random searches by the government, the non-cursory searches and seizure of electronic devices, which were described as basic and advanced, as presently defined, do not require reasonable suspicion that the devices contain contraband for both such classes of searches, and that without such reasonable suspicion, said searches violate the Fourth Amendment.

CLICK HERE to read the Massachusetts Federal District Court’s full decision.

This article was published in the Internet, Cyber and Copyright Group’s November 2019 Newsletter.

For more information, please contact Haim Ravia – Senior Partner and Chair of the Internet, Cyber and Copyright Group. HRavia@pearlcohen.com

 

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