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When is 4 Greater than 5?

Bragança Law

The Foregone Conclusion Doctrine Overriding the Fifth Amendment.

Bragança Law LLC | September 8, 2023.

Many legal ”experts” warn people to add a passcode lock to their phone if they suspect they will be arrested, or change to a passcode if they have a biometric lock. This summer, however, Illinois became the latest state to moot this advice when the Illinois Supreme Court held that the police can force a suspect to provide their passcode, regardless of its nature. While there is still no clear federal rule on this issue, Illinois is just the latest state to conclude that the Fifth Amendment does not bar compelling suspects to provide their phone passwords to law enforcement.

What is the Fifth Amendment?

The Fifth Amendment to the U.S. Constitution defines several limits to the power of the federal government, which were later extended to state governments after adoption of the Fourteenth Amendment. The most famous provision of the Fifth Amendment prohibits a person from being “compelled in any criminal case to be a witness against himself,” which is known as the Self-Incrimination clause.

The Self-Incrimination clause encompasses a range of safeguards to prevent self-incrimination. Importantly, it does not just apply in court. In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court held that the protection against self-incrimination applies whenever an individual is in police custody, which is why the police (even in television shows and movies) are required to affirmatively inform the suspect that they “have the right to remain silent” and why failure to provide the warning can often result in “confessions” being ruled inadmissible in future proceedings. When witnesses choose not to respond to inquiries that could implicate themselves, it is commonly referred to as “Pleading the Fifth,” a colloquial expression used to invoke the Self-Incrimination Clause.

So how does this affect phone passwords?

Whether an individual can be compelled to provide a biometric or key lock password to their phone is a continuing area of controversy. The United States Supreme Court has not yet weighed in, and state and federal courts have split on the issue. Some courts have held that compelling someone to provide their phone password would be a violation of the Fifth Amendment, as it forces an individual to provide testimonial evidence that could potentially incriminate them. Other courts have ruled that providing a phone password is a physical act rather than testimonial in nature and, therefore, the Fifth Amendment does not apply. They treat being forced to provide a password as similar to being compelled to provide a key to a lock, which is considered a physical act.

This can be particularly important in SEC investigations. For example, in the recent SEC action against a real estate broker (and former Kirkland & Ellis lawyer) being investigated for insider trading, the SEC seeks a court order requiring the broker/lawyer to provide the SEC with his password. The SEC argued that the broker/lawyer’s assertation of his Fifth Amendment privilege was improper, and that the Foregone Conclusion doctrine allowed them to compel him to provide his device along with his password. See SEC v. Charnas, Case No. 1:23-mc-22764 (S.D. Fla.) (filed July 25, 2023). While the SEC had already obtained many of the broker/lawyer’s text messages from other sources, it “believes” other relevant texts could be found on his phone. The SEC’s position in this application is not surprising, but the fact that it chose to issue a press release announcing the application is, according to Charnas, unprecedented. Further, despite the SEC’s assurances of confidentiality to respondents in its investigations, SEC counsel disclosed to Charnas that none of the other respondents in the investigation had raised a Fifth Amendment challenge. Such a disclosure is contrary to the SEC’s usual (and repeatedly stated) practice of keeping those kinds of details confidential.

The Illinois Supreme Court’s latest ruling in People v. Sneed, 2023 IL 127968, is consistent with the position advocated by the SEC. The Court made it clear that the rule is the same whether the password is a string of letters or numbers or is provided biometrically using a fingerprint, facial recognition or a retina scan. While courts are increasingly moving toward the position that requiring a suspect to provide a password does not violate the Fifth Amendment, Sneed is unusual in the breadth of authority it gives to prosecutors. More often, courts have crafted more narrow rules allowing the police to compel production of a password, often relying on court-crafted common law doctrines like the “Foregone Conclusion Doctrine.”

What is the Foregone Conclusion Doctrine?

The “Foregone Conclusion Doctrine” provides that an individual can be compelled to produce evidence or documents that may be incriminating if it is already a “foregone conclusion” that the evidence exists, that the evidence is authentic and owned by the suspect, and that the evidence is within the suspect’s possession or control. If the government can meet this standard, then the Fifth Amendment privilege against self-incrimination does not bar the government from demanding the individual’s cooperation in producing the evidence.

The doctrine originates from Fisher v. United States, 425 U.S. 391 (1976), where the Supreme Court held that defendants could be compelled to produce incriminating financial records because the records that were being subpoenaed already existed and providing the records would not be testimonial and therefore would not be protected under the Fifth Amendment. How a state treats subpoenas for cellular phones largely depends in practice on the state’s interpretation of the Foregone Conclusion Doctrine. Missouri and New Jersey tend to interpret the state’s knowledge that a passcode simply exists as allowing the Foregone Conclusion Doctrine to be applied. For example, the New Jersey Supreme Court held that “even production that is of a testimonial nature can be compelled if the Government can demonstrate it already knows the information that act will reveal — if, in other words, the existence of the requested documents, their authenticity, and the defendant’s possession of and control over them — are a foregone conclusion.” State v. Andrews, 243 N.J. 447, 456, 234 A.3d 1254, 1259 (2020)

Although it went further than many courts, the Illinois Supreme Court in Sneed relied largely on the Foregone Conclusion Doctrine. Specifically, the court found that the contents of the defendant’s phone themselves were not testimonial in nature and it was a foregone conclusion that he had the passcode (as the defendant had already consented to a subpoena for the contents of his phone). Thus, the court held that the Fifth Amendment did not protect the defendant from being forced to provide the passcode. See also, People v. Hollingsworth, 2022 IL App (4th) 190329-U, which interpreted the Foregone Conclusion Doctrine to allow the State to compel defendants to unlock any device secured with a biometric password.

Could I possibly be compelled to provide a biometric password?

Even where courts have treated the act of providing a password as testimonial in nature, the application of the Fifth Amendment to biometric authentication methods, like facial recognition or thumb scans is less clear. The distinction seems to based on the notion that providing biometric data involves the production of physical characteristics—which has not been seen as testimonial, rather than the disclosure of knowledge—which is more likely characterized as testimonial. Where the distinction exists, the courts treat biometric features as tangible physical evidence, akin to providing a key or a fingerprint sample, and therefore not protected by the Fifth Amendment.

Can I refuse to provide my phone at all if I receive a subpoena for it?

Generally speaking, you cannot refuse to provide the evidence requested in a subpoena. If you receive a subpoena for your phone’s data, it’s essential to take it seriously. Refusing to comply without proper legal grounds can lead to serious consequences. However, there are some potential ways to avoid providing your phone.

You, generally through an attorney, can object to producing the phone on the basis of the Fifth Amendment. Your attorney can discuss that objection with the government staff. The government staff may disagree and bring a subpoena enforcement action as they did with Charnas (the broker/lawyer). The court will then decide. Regardless of the Fifth Amendment, certain information on your phone might be protected by privileges, such as attorney-client privilege, allowing you to withhold it under specific circumstances. Additionally, data privacy laws in your jurisdiction might limit the type of data that can be accessed or obtained. However, it’s crucial to seek legal advice from an attorney to determine the best course of action based on your specific situation. Keep in mind that the laws concerning subpoenas and data access can be complex and vary by state. Also regulators take varying approaches to how they approach this issue.

The most important step is to contact an attorney before providing your phone, your password, or any data on the phone. As demonstrated by Sneed and numerous other state and federal cases, even providing your phone or data in an encrypted format may waive your right to exercise your Fifth Amendment rights.

It is important to note that while all of the cases discussed above involved valid search warrants, no warrant is necessary to search your cellphone if you’re crossing into the country from abroad. For example in Malik, et al. v. United States Dept. of Homeland Security, et al., No. 22-10772 (5th Cir. Aug. 15, 2023), the Fifth Circuit recently held that a warrantless search of an attorney’s cellphone at a border crossing, including engaging in a months-long decryption by a forensics lab to bypass the phone’s password encryption, did not violate any constitutional right.

What should I do if I receive a subpoena for my cell phone?

Make sure to contact an attorney experienced in handling demands from prosecuting or investigatory bodies. It is essential that you contact an attorney as soon as possible to ensure that you can take advantage of the full extent of your Fifth Amendment rights without inadvertently waiving your rights, while still complying with the subpoena.

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