The New Jersey Supreme Court passed a ruling on Monday which allows investigation agencies to force criminals to reveal their smartphone passcodes. It was previously considered that smartphone passcodes, or biometrics, were protected by the Fifth Amendment of the U.S. Constitution and investigators would be violating the constitution by getting criminals to unlock their smartphones.
In a 4-3 ruling, the court sided with allowing access to the smartphone of an Essex County officer who was accused of working with a gang, behind the scenes. As per the court order, the officer will have to provide passcodes to his smartphones to allow investigations to continue.
As per NorthJersey, the defendant argued that giving his smartphone passcode would amount to be testimony, which would violate his Fifth Amendment rights and protections under the law. However, the state argued that search warrants already existed for the messages and phone call data in the phone, which meant that the content of the smartphone was a ‘foregone conclusion’. The only thing stopping from authorities from seeing the content was the smartphone passcode.
As per Justice Lee A. Solomon:
“the issue is one of surrender, not testimony, and that the foregone conclusion exemption to the Fifth Amendment thus applies.”
The Justice further said that the passcode itself was of little value and will only give access to the smartphone’s contents. The passcode itself does not confirm that the crime was committed.
However, the minority opinion from the court ruling was completely against the majority opinion and argued that it goes against the constitution and state common law.
“We are at a crossroads in our law. Will we allow law enforcement — and our courts as their collaborators — to compel a defendant to disgorge undisclosed private thoughts — presumably memorized numbers or letters — so that the government can obtain access to encrypted smartphones?” LaVecchia wrote. “In my view, compelling the disclosure of a person’s mental thoughts is anathema to fundamental principles under our Constitution and state common law.”
As per the defendant’s attorney, Charles J. Sciarra, this was a major defeat to the U.S. Consitution.
“Forget alleged criminal conduct: It’s time to rethink whether you should keep anything simply private or personal on a personal electronic device because if the government wants it, they can now get it,” he said. “If you are in a car accident they can go through your whole phone to see if you were a distracted driver.”
The police would still need a search warrant to access the defendant’s smartphone, however, it will be interesting to see how limited the warrant’s scope will be. Having access to just text messages and phone calls data would be one thing, but having complete access to all apps, and other data contained in them would not be something that the law allows, as they would not be covered under the investigation.