In a recent privacy case, the Supreme Court of New Jersey ruled that criminal defendants may, under certain circumstances, be compelled to reveal their smartphone passwords to officers of the law. The ruling rejected the defendant’s claim to fifth amendment protections, rights that bar the state from requiring persons to self-incriminate or to provide forced testimony. The court’s decision specifically drew upon the doctrine of “foregone conclusion,” which was established in Fisher v. United States (1976) and creates a category of information that is considered to be subject to fifth amendment protection. Interestingly, another recent case in Indiana, SEO v. State (2020), resulted in an opposite ruling that recognized fifth amendment protections for an individual’s password.
The doctrine of “foregone conclusion,” according to the EFF and other sources, involves the government requesting access to documents, information, or other objects that are known to belong to an individual or organization, are authentic, and that contain specific information or evidence that is sought with certainty. While the doctrine has received scant articulation from the high court, it has been expanded to justify government actions, though it does appear that challenges are mounting. Additional recent cases involving “foregone conclusion” have occurred in Oregon and Pennsylvania.
Northjersey.com reports that a former Essex County police officer, Robert Andrews, who was charged with multiple counts of official misconduct and other crimes, argued that being forced to reveal his password would constitute providing “testimony” and be in violation of the fifth amendment as well as other New Jersey laws. The decision was split, with four judges constituting a majority that supported the “foregone conclusion” argument of the state and three that ruled in favor of the officer. The dissent in the case clearly identified the password as belonging to the realm of thought, which was similar to the majority ruling in Indiana to recognize fifth amendment protections.
The Ongoing Debates About Privacy, ‘Foregone Conclusion,’ & The Future
The uptick in cases involving “foregone conclusion” could lead to a new case reaching the US Supreme Court. The area of law is extremely complex and lower level courts appear to disagree. That said, the differing rulings could result from specific distinctions between the discrete cases. The lower level rulings in Oregon (2019) appear to have found in favor of the “foregone conclusion” argument, though the EFF indicates that the case might rise to a higher court within the state. Thus, the area of law appears to be under development still, but these developments have important bearings on the privacy rights of citizens now and beyond.
Imagine a future in which we have become more integrated with technology, such as through devices similar to Neuralink. One ought to wonder how these doctrines of fifth amendment protection from self-incrimination or forced testimonial and the doctrine of “foregone conclusion” will evolve. Could integration with machines that allow for the capture and storage of memories and thoughts allow the government to request access to your mind? One imagines and hopes that the high court will find a distinction if such an as applied case were to appear on the docket some day in the future. Thus far, the courts have in many cases made a distinction between the ethereal objects that inhabit our brains; however, it is an open question how they will be treated once they are reliably captured and made available as retrievable “objects.”
One must keep in mind that, as with all aspects of the law, rights are not absolute and they are balanced against competing state and individual interests. That said, the bar in such a scenario ought to be set extremely high for any intrusion into the most private of spaces, a realm into which the state has yet to penetrate—the final frontier of surveillance and control.
Source: Northjersey.com