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The Richard J. Hughes Justice Complex, the seat of New Jersey's Supreme Court.

U.S. Supreme Court won’t take up forced password disclosure appeal

Precedent allows law enforcement, courts to compel disclosure

By Nikita Biryukov, May 19 2021 1:09 pm

The U.S. Supreme Court on Tuesday declined to take up a case weighing whether the Fifth Amendment could be used to shield the disclosure of electronic passwords, leaving in place existing precedent that allows authorities to compel password disclosure.

The case at question asked whether Robert Andrews, a former Essex County sheriff’s officer accused of divulging investigatory information about a drug ring to its dealers, can be forced to disclose passwords to two iPhones prosecutors say contain evidence the former Newark Police officer committed a crime.

Andrews was indicted on charges official misconduct, hindering apprehension and obstruction of justice for allegedly advising Quincy Lowery, the target of a state narcotics investigation, on how to avoid trouble with the law.

Lowery told authorities Andrews told him to get rid of his cellphones to avoid wire taps, identified law enforcement personnel following him and advised him to search for a tracking device on his vehicle. Lowery’s cellphone records appeared to corroborate his claims. The two exchanged 114 text messages and calls over a six-week period.

The New Jersey Supreme Court last August ruled the Fifth Amendment did not protect Andrews’ passwords from disclosure. The right against self-incrimination, they said, did not extend to nontestimonial disclosures — in this case, voluntary communications and physical objects.

It also found password disclosure in Andrews’ case fell under the foregone conclusion exception because prosecutors had established his phones contained authentic evidence the state knew existed.

Attorneys for Andrews, the American Civil Liberties Union and The Electronic Frontier Foundation, a digital privacy non-profit, asked the court to reexamine its ruling, arguing the foregone conclusion exception does not apply to testimony and that the Fifth Amendment provides for no such exception.

They argued providing a password was a testimonial act that fell under protections provided by the Fifth Amendment, even if files on an electronic device, and not the password itself, contained incriminating evidence.

The petitioners asserted the case would provide the U.S. Supreme Court with a chance to bring divergent court precedents in other states and at the federal level into line.

In her dissent, Justice Jaynee LaVecchia argued the New Jersey Supreme Court’s 4-3 August ruling trampled on protections from forced disclosure of the content of one’s mind, arguing existing precedent dealing with document disclosure could not be extended to Andrews’ case.

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