But other courts in Florida, Wisconsin, and Pennsylvania have reached the opposite conclusion, holding that forcing people to provide computer or smartphone passwords would violate the Fifth Amendment.Lower courts are divided about this issue because the relevant Supreme Court precedents all predate the smartphone era. To understand the two competing theories, it's helpful to analogize the situation to a pre-digital technology.
Suppose that police believe that a suspect has incriminating documents stored in a wall safe, so they ask a judge to compel the suspect to open the safe. The constitutionality of this order depends on what the police know.
If the government can't show that the suspect knows the combination—perhaps the suspect claims the safe actually belongs to a roommate or business partner—then all courts agree that forcing the suspect to try to open it would be unconstitutional. This is because the act of opening the safe functions as an admission that the suspect owns the safe and the documents inside of it. This fact could be incriminating independent of the contents of any documents found inside the safe.
On the other hand, if the government can show that the suspect knows both the password and which specific documents are in the safe—perhaps because the suspect described the safe's contents during an interrogation—then all courts agree that the suspect can be forced to open the safe. That's because the Fifth Amendment is a right against self-incriminating testimony, not the production of incriminating documents.
But what if the state can show the suspect knows the combination but doesn't know which documents are in the safe? Here the courts are split.
One theory holds that only the act of opening the safe is testimonial. Once the safe is open, the safe contains whatever documents it contains. The police get the information in the documents directly from the documents, the same as they would if they'd found them lying on the suspect's desk. So the contents of the documents are not compelled testimony.
The other theory—the one endorsed by Indiana's Supreme Court this week—holds that it matters whether the police know which documents they're looking for. If the police are looking for specific documents that they know are in the safe, then there may be no Fifth Amendment problem. But if the request is more of a fishing expedition, then it's barred by the Fifth Amendment, since the act of opening the safe gives the police access to information they wouldn't have otherwise. Some courts have found this argument particularly compelling due to the vast amount of information on modern smartphones.A key ruling here is a 2000 Supreme Court opinion in the prosecution of Webster Hubbell, a Bill Clinton associate who got ensnared by the Whitewater investigation. Prosecutors asked Hubbell to produce documents in 11 broad categories. By combing through the documents Hubbell provided, prosecutors were able to find evidence to charge Hubbell with mail fraud and tax evasion. Hubbell argued that the prosecution violated his Fifth Amendment rights, since he'd been compelled to provide the evidence used to prosecute him.
