A set of contradictory court decisions with an impact on digital privacy confused a portion of the nation and possibly the world on May 30. One Florida circuit court judge jailed a man after he gave investigators a passcode that failed to unlock his phone. Another Florida circuit court judge let a defendant walk after he explained that he forgot the password to his phone.
In case one, Broward Circuit Court Judge Michael Rothschild found the defendant guilty of contempt of court midway through the month of May. The defendant, a 41-year-old named Christopher Wheeler, gave police officers a passcode to his phone that did not work. Law enforcement was investigating Wheeler for suspected child abuse at the time.
He allegedly scratched and bruised his daughter earlier this year. The prosecution believed that Wheeler’s phone could contain photos that would indicate that he committed the crime. But after giving the investigating authorities his alleged passcode, the phone did not unlock. Judge Rothschild held Wheeler in contempt of court as of May 12. On May 30, the Broward Circuit Court judge ordered that Wheeler spend six months in jail.
“I swear, under oath, I’ve given them the password,” he told the court.
Wheeler is now serving six months in jail for contempt of court. However, he has a way out; “Should defendant provide a password which unlocks the phone prior to sentencing or thereafter, the court will purge the contempt and vacate the sentence,” Judge Rothschild wrote. If Wheeler is in possession of incriminating evidence on his phone, presumably not revealing his passcode and spending six months in jail is the preferable route. (This move resembles some desperate moves prosecutors have left in the past when fishing for evidence.)
This is a somewhat pivotal moment as judges have ruled that passwords are protected under under the Fifth Amendment. Then again, some have ruled that passwords are not any different than fingerprints when arguing that revealing your password is a method of self-incrimination. (A suspect is required—by law—to unlock his or her phone with a fingerprint if requested by authorities.
In case two, Miami-Dade Circuit Judge Charles Johnson allowed the defendant, Wesley Victor, to walk free after he explained that he had forgotten the password. Victor and his former girlfriend, Hencha Voigt, were accused of threatening to release sex tapes of a Miami “celebrity” unless she paid $18,000.
Midway through May the judge ordered both Victor and Voigt to unlock their phones or give detectives their passcodes. Voigt gave the officers the pin to unlock her iPhone. That pin did not work. Judge Johnson found her in contempt of court and ordered that she reappear to offer an explanation as to why the passcode failed to unlock the phone.
Victor, though, never attempted to deliver a password to the officers. His reasoning? That since more than 10 months past since his arrest, he no longer remembered the password needed to unlock his Blackberry. The judge said that nobody could prove Victor was lying and decided against holding him in contempt of court.
“The judge made the right call,” Victor’s attorney said. “My client testified he did not remember. It’s been almost a year. Many people, including myself, can’t remember passwords from a year ago.”
Judge Johnson will see Voigt again in early June. There are very few reasons Voigt would use a different argument.