by Diego Wright*

The notion that “the pub­lic has a right to every man’s evi­dence” is well estab­lished in Amer­i­can jurispru­dence.1 How­ev­er, the Fifth Amend­ment guar­an­tees that “[n]o per­son . . . shall be com­pelled in any crim­i­nal case to be a wit­ness against him­self.”2 Where the gov­ern­ment seeks to com­pel the defen­dant to pro­duce evi­dence, these two rights square­ly con­flict. Though the Fifth Amend­ment most obvi­ous­ly pro­tects ver­bal or writ­ten tes­ti­mo­ny, the Supreme Court has acknowl­edged that some actions may be suf­fi­cient­ly com­mu­nica­tive to also war­rant con­sti­tu­tion­al pro­tec­tion.3

In Fish­er v. Unit­ed States, when con­sid­er­ing whether the gov­ern­ment could com­pel pro­duc­tion of doc­u­ments, the Court rea­soned that where pro­duc­tion of the doc­u­ments sought is a “fore­gone con­clu­sion,” the pro­duc­tion of those doc­u­ments by the accused has so lit­tle tes­ti­mo­ni­al val­ue as to not be pro­tect­ed under the Fifth Amend­ment.4 In oth­er words, where the gov­ern­ment already knows of the exis­tence, con­trol, and authen­tic­i­ty of the doc­u­ments they seek, the accused may be com­pelled to pro­duce the doc­u­ments.5

The “fore­gone con­clu­sion” doc­trine orig­i­nal­ly con­sid­ered the pro­duc­tion of phys­i­cal evi­dence like doc­u­ments. Its appli­ca­tion to the dig­i­tal con­text may seem straightforward—after all, a dig­i­tal file is not all that dif­fer­ent from a phys­i­cal one. In prac­tice, the appli­ca­tion is not so sim­ple because of encryp­tion. Encryp­tion is a tech­nol­o­gy which at its most basic trans­forms leg­i­ble data into illeg­i­ble data via a reversable algo­rithm. This process usu­al­ly involves a pass­word with­out which the infor­ma­tion with­in the device is prac­ti­cal­ly inac­ces­si­ble. The idea to obfus­cate infor­ma­tion is not new—ciphers have his­tor­i­cal­ly achieved sim­i­lar results6—but encryption’s ubiq­ui­ty com­pli­cates the pro­duc­tion of dig­i­tal doc­u­ments pur­suant to a sub­poe­na or court order.

The basic prob­lem is this: if the gov­ern­ment has law­ful­ly obtained a search war­rant to search through an individual’s encrypt­ed cell phone, but is pre­vent­ed from access­ing the con­tents of the phone due to pass­word pro­tec­tion, can the gov­ern­ment com­pel the own­er of the phone to pro­duce the pass­word? Courts have attempt­ed to answer this ques­tion by treat­ing the sit­u­a­tion as a doc­u­ment pro­duc­tion and apply­ing the fore­gone con­clu­sion doc­trine. This arti­cle will argue that, assum­ing the fore­gone con­clu­sion doc­trine applies here, the gov­ern­ment must demon­strate with rea­son­able par­tic­u­lar­i­ty that (1) the accused knows the pass­word to the device, (2) that the files the gov­ern­ment seeks exist on the device, and (3) that the accused pos­sess­es or con­trols those files.

* * * * *

It is not obvi­ous how to adapt the fore­gone con­clu­sion doc­trine, orig­i­nal­ly intend­ed for phys­i­cal doc­u­ment pro­duc­tion, to the con­text of an encrypt­ed device. In a sce­nario involv­ing a cell phone, it is often the case that the phone itself is sub­ject to a search war­rant, and only after fail­ing to access the con­tents of the phone is a court order obtained com­pelling dis­clo­sure of the pass­word.7 This is unlike a case like Unit­ed States v. Hubbell where the doc­u­ments sought by the Inde­pen­dent Coun­sel were only ever sub­ject to a grand jury sub­poe­na duces tecum.8 Crit­i­cal­ly, the doc­trine focus­es on to what extent the gov­ern­ment can demon­strate knowl­edge about the doc­u­ments sought.9 Nonethe­less, courts applied the doc­trine to cell phone pro­duc­tion sce­nar­ios and have end­ed up at two com­pet­ing answers for what is anal­o­gous to the doc­u­ments: the cell phone con­tents, or the cell phone pass­word.10 The crit­i­cal ques­tion in this anal­o­gy is what does the act of unlock­ing a cell phone real­ly com­mu­ni­cate?11

Courts requir­ing the gov­ern­ment to demon­strate knowl­edge about the cell phone con­tents have done so because they believe “[g]iving law enforce­ment an unlocked smart­phone com­mu­ni­cates to the [gov­ern­ment], at a min­i­mum, that (1) the sus­pect knows the pass­word; (2) the files on the device exist; and (3) the sus­pect pos­sess­es those files.”12 The Indi­ana Supreme Court rea­soned in Seo v. State that the act of pro­duc­tion in response to a court order or sub­poe­na tac­it­ly com­mu­ni­cates infor­ma­tion about the con­tents of the phone.13 As a result, to sat­is­fy the fore­gone con­clu­sion doc­trine, these tes­ti­mo­ni­al com­mu­ni­ca­tions must be known to the gov­ern­ment already.

Those courts which require the gov­ern­ment only to demon­strate knowl­edge about the cell phone’s pass­code believe that the act of unlock­ing the phone only com­mu­ni­cates knowl­edge about the pass­code itself.14 Some of these courts have specif­i­cal­ly not­ed that they are opposed to requir­ing any fur­ther demon­stra­tion of infor­ma­tion because to do so would be to “import[] Fourth Amend­ment pri­va­cy prin­ci­ples into a Fifth Amend­ment inquiry.”15

Courts have addi­tion­al­ly con­sid­ered the impli­ca­tions of what kind of pass­code a per­son choos­es to use for their cell phone. Phones allow peo­ple to use a vari­ety of pass­words or pat­terns as method to unlock phones, includ­ing bio­met­ric locks such as fin­ger­prints or facial recog­ni­tion. It is clear­ly estab­lished that the body of a per­son as evi­dence is not pro­tect­ed by the Fifth Amend­ment.16

The stan­dard the gov­ern­ment needs to meet in either anal­o­gy is gen­er­al­ly “rea­son­able par­tic­u­lar­i­ty.”17 This stan­dard has no bright-line def­i­n­i­tion, but rather depends on the facts of the case at hand. For exam­ple, in State v. Andrews, local law enforce­ment could demon­strate that they knew a pass­code exist­ed and that the con­tents of the phone were pass­word pro­tect­ed.18 Fur­ther, law enforce­ment could estab­lish that the defen­dant pos­sessed the phone and that he had oper­at­ed it such that his knowl­edge of the pass­code was estab­lished.19 The Court in Andrews required a show­ing with regard to the cell phone pass­code, but not­ed that had they required a show­ing with regard to the cell phone con­tents instead, law enforce­ment would still have met this bur­den because they had sup­ple­men­tary infor­ma­tion from com­mu­ni­ca­tion data war­rants and wit­ness coop­er­a­tion which estab­lished knowl­edge of the con­tents of the phone they sought.20

Sim­i­lar­ly, in State v. Stahl the court rea­soned that because the phone “could not be searched with­out entry of a pass­code,” a pass­code “must exist.”21 The state used “cell phone car­ri­er records,” the defendant’s iden­ti­fi­ca­tion of the phone, and the “cor­re­spond­ing phone num­ber” to show that the phone belonged to the defen­dant, and inferred from that infor­ma­tion that the defen­dant must know the pass­code.22 Last­ly, the court not­ed that the fore­gone con­clu­sion doc­trine can­not be “seam­less­ly applied” to new tech­nol­o­gy, and inso­far as the doc­trine can be applied, the court held that the pass­code is authen­tic if it can be used to open the phone.23 Oth­er courts have required a sim­i­lar kind of show­ing to meet these require­ments.24 Ulti­mate­ly, a “mere infer­ence that evi­dence may exist” is insuf­fi­cient to sat­is­fy the fore­gone con­clu­sion doc­trine.25

* * * * *

If the fore­gone con­clu­sion doc­trine is to be applied to the pro­duc­tion of cell phone con­tents pur­suant to a search war­rant, care must be tak­en to not allow this doc­trine become a rub­ber stamp. The hold­ing of the Supreme Court of Illi­nois in Seo v. State best analo­gizes the doc­trine from the con­text of the pro­duc­tion of phys­i­cal doc­u­ments to that of dig­i­tal doc­u­ment pro­duc­tion. By under­stand­ing that the impor­tant con­sid­er­a­tion of the doc­trine in Fish­er, and lat­er Hubbell, was about the doc­u­ments ulti­mate­ly pro­duced, the court in Seo rec­og­nized that the act of unlock­ing the phone com­mu­ni­cates tes­ti­mo­ni­al and poten­tial­ly incrim­i­nat­ing infor­ma­tion regard­ing the infor­ma­tion pro­duced from the phone. Unlock­ing a phone com­mu­ni­cates this infor­ma­tion in the same way that phys­i­cal­ly obtain­ing and hand­ing over the doc­u­ments in Fish­er or Hubbell would com­mu­ni­cate infor­ma­tion about those doc­u­ments.26 Thus, to prop­er­ly sat­is­fy the fore­gone con­clu­sion doc­trine in sit­u­a­tions involv­ing a cell phone, law enforce­ment must demon­strate with rea­son­able par­tic­u­lar­i­ty that the accused knows the pass­word to the phone, that the files sought exist on the phone, and that the accused pos­sessed those files.27

Oppo­nents of this stan­dard may argue that this is try­ing to get law enforce­ment to jump through the Fourth Amend­ment hoop twice. This is not the case. Though it is true that the Fifth Amend­ment does not address pri­va­cy, it does deal with self-incrim­i­na­tion.28 When a per­son is asked to pro­vide the pass­code to their phone in the con­text of a crim­i­nal inves­ti­ga­tion into that per­son, com­ply­ing with that order com­mu­ni­cates incrim­i­nat­ing infor­ma­tion.29 This leads to the addi­tion­al point that law enforce­ment has absolute­ly no inter­est in the pass­code itself. It is sim­ply a tool to access the infor­ma­tion with­in the cell phone. Allow­ing law enforce­ment to gain access to these devices by com­pelling the very per­son who stands to suf­fer from any infor­ma­tion gained there­in vio­lates the prin­ci­ples under­ly­ing the doctrine.

The gov­ern­ment com­pels pro­duc­tion of doc­u­ments because they believe that the doc­u­ments will be use­ful to them in some mat­ter or inves­ti­ga­tion.30 By review­ing these doc­u­ments, the gov­ern­ment hopes to learn rel­e­vant and impor­tant infor­ma­tion relat­ed to their inves­ti­ga­tion or case. This is exceed­ing­ly obvi­ous but it must be stressed to under­stand how the doc­trine should be applied. Addi­tion­al­ly, this stan­dard is not impos­si­ble to meet; in fact, the Supreme Court of New Jer­sey stat­ed that had they adopt­ed this stan­dard, the police in State v. Andrews would have met it.31

From a pol­i­cy per­spec­tive, it would be unwise to apply the fore­gone con­clu­sion doc­trine in a weak man­ner. Con­sti­tu­tion­al prece­dent from decades ago has been trou­ble­some to apply to mod­ern tech­nol­o­gy. In Riley v. Cal­i­for­nia and Car­pen­ter v. Unit­ed States, the Supreme Court rec­og­nized that cell phones are unique items and declined to direct­ly apply old prece­dent.32 Chief Jus­tice John Roberts wrote for the major­i­ty in Riley that cell phones were “such a per­va­sive and insis­tent part of dai­ly life that the prover­bial vis­i­tor from Mars might con­clude they were an impor­tant fea­ture of human anato­my.”33 The Court in Car­pen­ter rec­og­nized that cell phones pre­sent­ed unprece­dent­ed pri­va­cy con­cerns, not­ing that peo­ple “com­pul­sive­ly car­ry cell phones with them all the time” which allows a cell phone to “track[] near­ly exact­ly the move­ments of its own­er.”34 Though these cas­es deal direct­ly with the Fourth Amend­ment, the same con­sid­er­a­tions apply to the right against self-incrim­i­na­tion as well which “serves to pro­tect the inno­cent who oth­er­wise might be ensnared by ambigu­ous cir­cum­stances.”35 Giv­en the ease with which police can attain a search war­rant that allows access to all parts of a cell phone, the unique nature of these devices demands rig­or­ous pro­tec­tion.36

Pro­po­nents of apply­ing the fore­gone con­clu­sion doc­trine to a cell phone pass­code argue that to do oth­er­wise would be to over­ly lim­it law enforcement’s abil­i­ty to inves­ti­gate crime.37 Pro­fes­sor Orin Kerr argues that encryp­tion intro­duces “pass­word gates” into what would oth­er­wise be “rou­tine search­es.”38 Though the pos­si­bil­i­ty of inac­ces­si­ble data is trou­ble­some, this argu­ment fails to con­sid­er that a search through a cell phone is any­thing but rou­tine. Where the sum­mons­es in Fish­er com­pelled pro­duc­tion of spe­cif­ic sets of tax doc­u­ments, some search war­rants for a cell phone autho­rize search­es of an enor­mous wealth of data includ­ing mes­sages, call and voice­mail records, finan­cial doc­u­ments, and real-time geolo­ca­tion data.39 The enor­mi­ty of infor­ma­tion that police can access through a sin­gle war­rant of a cell phone or a com­put­er is unlike search war­rants of bygone days, and mod­ern prece­dent should reflect that.

Law enforce­ment would like peo­ple to believe that obtain­ing infor­ma­tion is impos­si­ble in these sit­u­a­tions with­out the abil­i­ty to com­pel pro­duc­tion of the pass­word. This is untrue.40 There are sev­er­al meth­ods to bypass cell phone encryp­tion, includ­ing crack­ing the pass­code.41 In 2016, Apple refused to com­ply with the FBI’s court order demand­ing they assist the FBI in an inves­ti­ga­tion into a mass shoot­ing in San Bernardi­no.42 Though the cell phone pass­code in that sit­u­a­tion was a major hur­dle for the gov­ern­ment, it was ulti­mate­ly bypassed by a third-par­ty com­pa­ny. It is true that these meth­ods can be expen­sive and time con­sum­ing, per­haps to such an extent that it is imprac­ti­cal for some situations.

Even if this is so, oth­er alter­na­tives exist to obtain this infor­ma­tion such as third-par­ty search war­rants. The gov­ern­ment has issued sub­poe­nas to third par­ties order­ing them to pro­vide infor­ma­tion for decades.43 The gov­ern­ment can obtain cell phone car­ri­er records.44 The gov­ern­ment can issue search war­rants to com­pa­nies com­pelling those com­pa­nies to pro­vide infor­ma­tion about their users.45 Emails, mes­sages, pho­tos, geolo­ca­tion data, and so much more are backed up on cloud stor­age sys­tems, and these com­pa­nies expect search war­rants from police—so much so that many of them have pages on their web­sites stat­ing their pol­i­cy for such requests.46 It is cer­tain­ly pos­si­ble that law enforce­ment is unable to obtain all of the infor­ma­tion they seek through these kinds of third par­ty war­rants. How­ev­er, this infor­ma­tion may be used to sup­ple­ment a motion before the court com­pelling dis­clo­sure of a cell phone passcode.

* * * * *

The Fifth Amend­ment right against self-incrim­i­na­tion exists to pre­vent the gov­ern­ment from forc­ing a per­son to pro­vide evi­dence against them­selves. Jus­tice Louis Bran­deis wrote with great pre­science in his dis­sent in Olm­stead v. Unit­ed States that “[t]he progress of sci­ence in fur­nish­ing the Gov­ern­ment with means of espi­onage is not like­ly to stop with wire-tap­ping.”47 Since Jus­tice Bran­deis wrote that near­ly a cen­tu­ry ago, law enforcement’s abil­i­ty to eaves­drop, inter­cept, and oth­er­wise obtain pri­vate infor­ma­tion for use in inves­ti­ga­tions has grown tremen­dous­ly. Though per­haps an irri­tat­ing bar­ri­er to law enforce­ment, cell phone encryp­tion pro­tects many cit­i­zens’ most pri­vate and inti­mate data. The fore­gone con­clu­sion doc­trine should not be con­strued such that it allows “com­pul­so­ry pro­duc­tion of our most pri­vate” infor­ma­tion.48 Requir­ing law enforce­ment to demon­strate some knowl­edge about what they seek from a cell phone, while cer­tain­ly some­what bur­den­some to law enforce­ment, main­tains the under­ly­ing prin­ci­ples of the doc­trine, as estab­lished in Fish­er, and pro­tects the unique nature of a cell phone, which was recent­ly rec­og­nized by the Supreme Court.

* Diego Wright is a J.D. Can­di­date (2022) at New York Uni­ver­si­ty School of Law. This piece is a com­men­tary on a prob­lem pro­duced for the 2021 Her­bert Wech­sler Nation­al Crim­i­nal Law Moot Court Com­pe­ti­tion, host­ed by the Uni­ver­si­ty at Buf­fa­lo School of Law. The ques­tion pre­sent­ed was whether the “fore­gone con­clu­sion” doc­trine devel­oped in Fish­er v. Unit­ed States, 425 U.S. 391 (1976), in appli­ca­tion to the com­pelled dis­clo­sure of a cell phone pass­code, requires the gov­ern­ment to demon­strate knowl­edge of the exis­tence of the pass­code or to instead demon­strate knowl­edge of the iden­ti­ty and con­tents of the spe­cif­ic files and items that it seeks on the cell phone via an expan­sive search war­rant. The views expressed in this con­tri­bu­tion do not nec­es­sar­i­ly rep­re­sent the views of the author. The arti­cle is a dis­til­la­tion of one side of the argu­ment assigned to the team.

1. Trump v. Vance, 140 S. Ct. 2412, 2420 (2020).

2. U.S. Con­st. amend. V.

3. Fish­er v. Unit­ed States, 425 U.S. 391, 410 (1976) (explain­ing, for exam­ple, that com­ply­ing with a sub­poe­na for doc­u­ments “tac­it­ly con­cedes the exis­tence,” con­trol, and authen­tic­i­ty of the doc­u­ments by the per­son compelled).

4. Id. at 411.

5. See Unit­ed States v. Hubbell, 530 U.S. 27, 44–45 (2000).

6. E.g., Unit­ed States v. Burr (In re Willie), 25 F. Cas. 38, 39 (C.C.D. Va. 1807) (No. 14,692e) (con­sid­er­ing whether a defen­dant may be com­pelled to deci­pher a let­ter in their own trea­son trial).

7. See e.g., State v. Pittman, 367 Or. 498, 501 (2021).

8. Hubbell, 530 U.S. at 31.

9. Id. at 44–45 (hold­ing that because the Inde­pen­dent Coun­sel had no pri­or knowl­edge of the exis­tence of the doc­u­ments sought, the doctrine’s require­ments were not met).

10. Com­pare Seo v. State, 148 N.E.3d 952, 957 (Ind. 2020) (“[E]ntering the pass­word to unlock the device is anal­o­gous to the phys­i­cal act of hand­ing over doc­u­ments.”) with State v. Andrews, 243 N.J. 447, 479 (2020), cert. denied sub nom. Andrews v. New Jer­sey, No. 20–937, 2021 U.S. LEXIS 2547 (U.S. May 17, 2021) (“[W]e find that the fore­gone con­clu­sion test applies to the pro­duc­tion of the pass­codes them­selves, rather than to the phones’ contents.”).

11. See gen­er­al­ly Orin S. Kerr, Com­pelled Decryp­tion and the Priv­i­lege Against Self-Incrim­i­na­tion, 97 Tex. L. Rev. 767 (2019).; Lau­rent Sacharoff, Response, What Am I Real­ly Say­ing When I Open My Smart­phone?, 97 Tex. L. Rev. Online 63 (2019).

12. Seo, 148 N.E.3d at 955.

13. Id. at 957.

14. Pittman, 367 Or. at 518 (hold­ing that defen­dant unlock­ing a cell phone using a pass­code com­mu­ni­cates knowl­edge of the pass­code); Andrews, 243 N.J. at 480 (the same).

15. Andrews, 243 N.J. at 479; see also Com­mon­wealth v. Davis, 220 A.3d 534, 556 (Pa. 2019) (Baer, J., dis­sent­ing) (“This Court should not alle­vi­ate con­cerns over the poten­tial over­breadth of a dig­i­tal search in vio­la­tion of Fourth Amend­ment pri­va­cy con­cerns by invok­ing the Fifth Amend­ment priv­i­lege against self-incrim­i­na­tion, which offers no pri­va­cy protection.”).

16. Holt v. Unit­ed States, 218 U.S. 245, 252–53 (1910) (explain­ing that the right against self-incrim­i­na­tion does not exclude an individual’s per­son from being used as evi­dence); see also Schmer­ber v. Cal­i­for­nia, 384 U.S. 757, 763–65 (1966) (hold­ing that an indi­vid­ual may be com­pelled to sub­mit to a blood test); Gilbert v. Cal­i­for­nia, 388 U.S. 263, 265–67 (1967) (hold­ing that an indi­vid­ual may be com­pelled to pro­vide a hand­writ­ing exem­plar);  Unit­ed States v. Wade, 388 U.S. 218, 222–23 (1967) (hold­ing that an indi­vid­ual may be com­pelled to pro­vide a voice exemplar).

17. See, e.g., In re Grand Jury Sub­poe­na Duces, 670 F.3d 1335, 1346–47 (11th Cir. 2012); Pittman, 367 Ore. at 519.

18. 243 N.J. 447, 480 (2020), cert. denied sub nom. Andrews v. New Jer­sey, No. 20–937, 2021 U.S. LEXIS 2547 (U.S. May 17, 2021).

19. Id. at 480–81.

20. Id. at 458–59, 481.

21. 206 So. 3d 124, 136 (Fl. Dist. Ct. App. 2016).

22. Id.

23. Id.

24. See, e.g., Unit­ed States v. Apple Mac Pro Com­put., 851 F.3d 238, 248 (3d Cir. 2017) (find­ing a sworn affi­davit, lack of dis­pute of own­er­ship of devices, a sex­u­al­ly explic­it image, user logs, wit­ness tes­ti­mo­ny, and over 2,000 videos and pho­tos to be suf­fi­cient evi­dence in a child pornog­ra­phy case); Andrews, 243 N.J. at 480 (find­ing the tri­al court record show­ing pos­ses­sion and use of phone by defen­dant suf­fi­cient); Unit­ed States v. Spencer, No. 17-cr-00259-CRB‑1, 2018 U.S. Dist. LEXIS 70649, at *3 (N.D. Cal. Apr. 26, 2018) (find­ing suf­fi­cient show­ing where defen­dant con­ced­ed own­er­ship of, and pro­vid­ed pass­word to, the phone that was found in his residence).

25. Pol­lard v. State, 287 So. 3d 649, 657 (Fl. Dist. Ct. App. 2019).

26. See Seo v. State, 148 N.E.3d 952, 955–58 (Ind. 2020); see also Sacharoff, supra note 11, at 68  (“Enter­ing the pass­word to open the device is anal­o­gous to the phys­i­cal act of hand­ing over the papers.”).

27. See Seo, 148 N.E.3d at 957.

28. See Fish­er v. Unit­ed States, 425 U.S. 391, 411–12 (1976) (reit­er­at­ing that the Fifth Amend­ment pro­tects against com­pelled self-incrim­i­na­tion and not the dis­clo­sure of pri­vate information).

29. See Seo, 148 N.E.3d at 957.

30. E.g., Fish­er, 425 U.S. at 393–94 (describ­ing the IRS-com­pelled pro­duc­tion of doc­u­ments for use in a tax fraud inves­ti­ga­tion); Unit­ed States v. Hubbell, 530 U.S. 27, 30–31 (describ­ing how the Inde­pen­dent Coun­sel sub­poe­naed doc­u­ments to deter­mine whether plea bar­gain terms were vio­lat­ed); Unit­ed States v. Frid­man, 974 F.3d 163, 171 (2d Cir. 2020) (describ­ing how the IRS sought bank account doc­u­ments relat­ed to a tax-eva­sion inves­ti­ga­tion); Unit­ed States v. Ori­ho, 969 F.3d 917, 920 (9th Cir. 2020) (describ­ing a dis­trict court’s pre­tri­al repa­tri­a­tion order in a fraud and mon­ey laun­der­ing investigation).

31. State v. Andrews, 243 N.J. 447, 481 (2020) (“Although we reach that deci­sion by focus­ing on the pass­codes, we note that, in this case, we would reach the same con­clu­sion if we viewed the analy­sis to encom­pass the phones’ con­tents.”), cert. denied sub nom. Andrews v. New Jer­sey, No. 20–937, 2021 U.S. LEXIS 2547 (U.S. May 17, 2021).

32. Riley v. Cal­i­for­nia, 573 U.S. 373, 386 (2014) (hold­ing that cell phones may not be searched inci­dent-to-arrest with­out a war­rant); Car­pen­ter v. Unit­ed States, 138 S. Ct. 2206, 2217 (2018) (hold­ing that the third-par­ty doc­trine is not applic­a­ble to cell site loca­tion infor­ma­tion and a war­rant is required to search and seize such data).

33. Riley, 573 U.S. at 385.

34. Car­pen­ter, 138 S. Ct. at 2218.

35. Slo­chow­er v. Bd. of High­er Educ., 350 U.S. 551, 557 (1956); see, e.g., Car­pen­ter, 138 S. Ct. at 2271 (Gor­such, J., dis­sent­ing) (stat­ing that the Court should recon­sid­er Fifth Amend­ment doc­trine in light of major­i­ty opin­ion); Riley, 573 U.S. at 406–07 (Ali­to, J., con­cur­ring) (call­ing for a rebal­anc­ing of law enforce­ment and pri­va­cy inter­ests in con­text of search­es of a cell phone).

36. See Sacharoff, supra note 11, at 72.

37. See Kerr, supra note 11, at 790–99 (argu­ing that encryp­tion pass­word gates and the pos­si­bil­i­ty of “going dark” moti­vate nar­row­er inter­pre­ta­tion of the fore­gone con­clu­sion doctrine’s application).

38. Id. at 794.

39. Fish­er v. Unit­ed States, 425 U.S. 391, 394–95 (1976). But cf. State v. Andrews, 243 N.J. 447, 487 (N.J. Sup. Ct. 2020), cert. denied sub nom. Andrews v. New Jer­sey, No. 20–937, 2021 U.S. LEXIS 2547 (U.S. May 17, 2021) (not­ing that the orig­i­nal search war­rant had no lim­it but was lat­er nar­rowed to per­mit only a search of the phone and mes­sage icons of an iPhone).

40. Cf. Riley v. Cal­i­for­nia, 573 U.S. 373, 408 (2014) (Ali­to, J., con­cur­ring) (not­ing that “mod­ern tech­nol­o­gy [is] mak­ing it eas­i­er and eas­i­er for both gov­ern­ment and pri­vate enti­ties to amass a wealth of infor­ma­tion about the lives of ordi­nary Americans”).

41. Crack­ing an encrypt­ed device refers to uncov­er­ing or decrypt­ing the data on the device with­out know­ing the pass­word. This can be done via exploits or sim­ply guess­ing and check­ing, though depend­ing on the strength of the pass­word this may take any­where from sec­onds to decades.

42. Eric Licht­blau & Katie Ben­ner, Apple Fights Order to Unlock San Bernardi­no Gunman’s iPhone, N.Y. Times (Feb. 17, 2016),

43. See Doe v. Unit­ed States, 487 U.S. 201, 202–03 (1988) (explain­ing how the gov­ern­ment served sub­poe­nas on for­eign banks and even­tu­al­ly obtained the sought information).

44. See, e.g., State v. Stahl, 206 So. 3d 124, 136 (Fl. Dist. Ct. App. 2016) (not­ing that rea­son­able par­tic­u­lar­i­ty estab­lished with respect to pos­ses­sion of the cell phone due in part to cell phone car­ri­er records obtained by the state).

45. Jen­nifer Valenti­no-DeVries, Track­ing Phones, Google Is a Drag­net for the Police, N.Y. Times (Apr. 13, 2019), (explain­ing how “geofence” war­rants can pro­vide law enforce­ment with user infor­ma­tion for a spe­cif­ic area and time).

46. E.g., Google, (last vis­it­ed June 30, 2021); Snap, Inc., (last vis­it­ed June 30, 2021); Apple, (last vis­it­ed June 30, 2021); Face­book, (last vis­it­ed June 30, 2021).

47. 277 U.S. 438, 474 (1928) (Bran­deis, J., dissenting).

48. Fish­er v. Unit­ed States, 425 U.S. 391, 432 (1976) (Mar­shall, J., concurring).