With law enforcement members being found to force people into revealing the passcodes of their phones, there has been an appeal for the enforcement of the Fifth Amendment privilege against self-incrimination. This privilege enables citizens to put “the Fifth” into law to avoid handing over government evidence that could be used against them.
According to Electronic Frontier Foundation, it is noted that not all law enforcement officers show regard for the Fifth Amendment privilege. Aside from forcing people to type or tell their device’s password, decrypting phones and translating scrambled data to intelligible information also goes against the Fifth Amendment right.
In the case of Sergeant Edward J. Mitchell, military investigators forced him to unlock and decrypt his iPhone 6 despite him asking for a lawyer. Two violations were evident- the investigators’ persistent questioning of Sgt. Mitchell without a lawyer and the request forcing him to unlock and decrypt his device.
With the Fifth Amendment privilege, protection against “testimonial” communications is ensured, thereby protecting the individual against forced self-incrimination. Testimonial communications refer to those that oblige a person to utilize the “contents of his own mind” to disclose facts. Such type of communication does not have to use a verbal approach. The goal is to retrieve information that is conveyed by the suspect from his own mind, as noted by the US Supreme Court.
Therefore, unlocking and decrypting devices is intrinsically testimonial. First, forcing an individual to enter a memorized password means forcing him or her to reveal the mind’s contents to investigators. Such contents are entirely privileged by the Fifth Amendment. Second, the act of decrypting a device is testimonial due to the fact that the process involves the translation of jumbled, encrypted evidence into something that can be easily understood and used by investigators. This requires their dependence on the suspect’s mind and its contents.
Looking into the case of Sgt. Mitchell, the officers required his knowledge to effectively sort out the incomprehensible information on his device into a form that is intelligible for the latter to use against him. Due to the nature of decrypting devices, the EFF asserts that the forced decryption requiring passcodes directly violates the Fifth Amendment’s privilege against self-incrimination.
