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Pennsylvania Appellate Court finds that accused cannot be compelled to provide decryption password

December 5, 2019

Lower court had required disclosure of password under “foregone conclusion” exception to the prohibition against mandatory self-incrimination

In a four to three ruling, the Supreme Court of Pennsylvania in Commonwealth of Pennsylvania v. Davis found that a defendant cannot be compelled to disclose a password to allow the state access to the defendant’s lawfully-seized encrypted computer because a compulsion of that sort would violate the Fifth Amendment of the United States Constitution. This decision overturned a previous order of the Superior Court, which required that the defendant turn over a 64-character password to access his computer.

The defendant was accused of child pornography offences and in the course of its investigation, the police seized a desktop computer that was encrypted. During questioning, the defendant was asked for this password. He reportedly replied: “It’s 64 characters and why would I give that to you? We both know what’s on there. It’s only going to hurt me. No f*cking way I’m going to give it to you.” 

The prosecution brought a motion to require the defendant to reveal his password. The main issue under consideration in the court below was whether providing the password to defeat the encryption was testimonial in nature, and thus, protected by the Fifth Amendment. From page 4:

The trial court focused on the question of whether the encryption was testimonial in nature, and, thus, protected by the Fifth Amendment. The trial court opined that “[t]he touchstone of whether an act of production is testimonial is whether the government compels the individual to use ‘the contents of his own mind’ to explicitly or implicitly communicate some statement of fact.” 

The court below applied the “foregone conclusion” exception to the Fifth Amendment rule against incrimination, described at page 5:

The court noted the rationale underlying this doctrine is that an act of production does not involve testimonial communication if the facts conveyed are already known to the government, such that the individual “‘adds little or nothing to the sum total of the government’s information.’” The trial court offered that for this exception to apply, the government must establish its knowledge of (1) the existence of the evidence demanded; (2) the possession or control of the evidence by the defendant; and (3) the authenticity of the evidence. [citations omitted]

The trial court had a very high level of confidence about what was on the computer so it determined that the password fit within the “foregone conclusion” exception.

The appeal court disagreed:

Based upon the United States Supreme Court’s jurisprudence surveyed above, it becomes evident that the foregone conclusion gloss on a Fifth Amendment analysis constitutes an extremely limited exception to the Fifth Amendment privilege against self-incrimination. The Supreme Court has spoken to this exception on few occasions over the 40 years since its recognition in Fisher, and its application has been considered only in the compulsion of specific existing business or financial records. Its circumscribed application is for good reason. First, the Fifth Amendment privilege is foundational. Any exception thereto must be necessarily limited in scope and nature. Moreover, business and financial records are a unique category of material that has been subject to compelled production and inspection by the government for over a century. The high Court has never applied or considered the foregone conclusion exception beyond these types of documents. Indeed, it would be a significant expansion of the foregone conclusion rationale to apply it to a defendant’s compelled oral or written testimony. As stated by the Supreme Court, “[t]he essence of this basic constitutional principle is ‘the requirement that the [s]tate which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple cruel expedient of forcing it from his own lips.’” (emphasis original). Broadly circumventing this principle would undercut this foundational right.


Finally, the prohibition of application of the foregone conclusion rationale to areas of compulsion of one’s mental processes would be entirely consistent with the Supreme Court decisions, surveyed above, which uniformly protect information arrived at as a result of using one’s mind. To broadly read the foregone conclusion rationale otherwise would be to undercut these pronouncements by the high Court. When comparing the modest value of this exception to one’s significant Fifth Amendment privilege against self-incrimination, we believe circumscribed application of the privilege is in order. [citations omitted]

The Supreme Court of Pennsylvania concluded that the provision of the password was testimonial and was not within the “foregone conclusion” exception, and reversed the order of the Superior Court.

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