Two defendants in an extortion case in Florida have been ordered by Miami-Dade Circuit Court Judge Charles Johnson to turn over the PINs needed to gain access to two of four phones that were seized during the arrest of the defendants. “For me, this is like turning over a key to a safe-deposit box,” Judge Johnson said. The defendants, Hencha Voigt and her former boyfriend Wesley Victor, have argued through their attorneys that to hand over the PINs would violate their 5th amendment right to remain silent and protection from self incriminating testimony in a criminal case. Some privacy advocates have argued that forcing the defendants to disclose to the court what their phone’s PIN code is would also be a 1st amendment violation as well, in that it would be a form of compelled speech.
Judge Johnson’s order follows a precedent set by a 2016 ruling from the Florida Second District Court of Appeals, where a three judge panel ruled that handing over a four digit PIN to an iPhone did not qualify as testimony, and thus was not protected from disclosure to the court under the 5th amendment’s self incrimination clause. Hencha Voidt has been ordered to provide the PIN to her seized iPhone, and Wesley Victor has been ordered to provide the PIN to his seized Blackberry. Prosecutors believe the two used the phones to send text messages to internet celebrity “YesJulz” where they demanded payment of $18,000 or else they would release videos and photographs of a sexual nature that were taken of her.
Other courts have ruled the 5th amendment does apply in such situations. A federal court in Pennsylvania ruled, in the 2015 case of SEC v. Huang, that a defendant could not be compelled to disclose the PIN to their phone, and that to compel disclosure would violate the defendant’s 5th amendment protection from self incrimination. While the Third Circuit Court of Appeals ruled against disclosing phone password’s in SEC v. Huang, that same court recently unanimously ruled that a defendant could be forced to disclose passwords to a device which held incriminating evidence. In that case, a former Philadelphia police officer is being held indefinitely until he discloses the passwords to two hard drives that he had encrypted using Apple’s FileVault. The court argued in that case that it was a foregone conclusion that child pornography is located on the two hard drives.
“This is a fishing expedition. … You are asking my client to be compelled to divulge her thought process. This is not a fingerprint, or a blood sample for DNA purposes. … It’s what is in her mind and what we believe can be incriminating and a violation of her right to remain silent,” Kertch Conze, Voigt’s attorney, told the judge. Zlejka Bozanic, the attorney for Victor, agreed that turning over a phone’s PIN was testimonial in nature and different from providing a fingerprint or DNA. Other courts have ruled that devices which are unlocked using biometrics, such as through a fingerprint scanner, are not protected by the 5th amendment and that disclosure of of fingerprints is not testimonial in nature. One such ruling came in 2014 from a Circuit Court judge in Virginia. Earlier this year, the Minnesota Court of Appeals ruled that a defendant could be ordered to provide their fingerprints in order to unlock a seized phone. The Minnesota court agreed that disclosing the fingerprints was no different than being ordered to provide a blood sample or a handwriting sample. Similar cases where defendants were ordered to use their fingerprints to unlock phones occurred in California last year as well.
Bozanic has stated that her client, Wesley Victor, does not remember the PIN to his Blackberry and thus will not be able to comply with the court’s order. Both the attorney for Voidt and the attorney for Victor believe the issue of courts compelling defendants to turn over PINs and passwords will go all the way to the United States Supreme Court. As there is currently no consensus among state and federal courts across the country, it is inevitable that a case such as this will eventually be heard by the high court to decide once and for all if the 5th amendment will apply in the digital age.