by Heather Globerman*


The Fifth Amend­ment of the Unit­ed States Con­sti­tu­tion pro­vides that “[n]o per­son shall be … com­pelled in any crim­i­nal case to be a wit­ness against him­self.”1 How­ev­er, the Fifth Amend­ment priv­i­lege does not cov­er all acts which may be incrim­i­nat­ing, but rather “pro­tects a per­son only against being incrim­i­nat­ed by his own com­pelled tes­ti­mo­ni­al com­mu­ni­ca­tions.”2 That being said, if the implic­it asser­tions from an act of pro­duc­tion fall into the cat­e­go­ry of com­mu­ni­ca­tions that are both com­pelled and incrim­i­nat­ing, then the act of pro­duc­tion is pro­tect­ed by the Fifth Amend­ment priv­i­lege against self-incrim­i­na­tion.3 This is because such implic­it admis­sions can be incrim­i­nat­ing by “furnish[ing] a link in the chain of evi­dence need­ed to pros­e­cute.”4 This link pro­vid­ed by the defen­dant is inher­ent­ly tes­ti­mo­ni­al because it requires him to “use his mind to assist the pros­e­cu­tion”5 and tell inves­ti­ga­tors infor­ma­tion that is “tan­ta­mount to tes­ti­mo­ny”6—that the sus­pect does know or pos­sess the infor­ma­tion sought, that the evi­dence sought exists or is authen­tic, or where the evi­dence is locat­ed.7

While this Fifth Amend­ment act of pro­duc­tion pro­tec­tion was intro­duced in the con­text of com­pelled doc­u­ment pro­duc­tion pur­suant to a sub­poe­na, in recent years it has been applied in the con­text of the com­pelled pro­duc­tion of smart­phone pass­words, as well as oth­er elec­tron­ic keys such as com­put­er encryp­tion codes and bio­met­ric locks.8 This is a notable devel­op­ment giv­en the unprece­dent­ed pletho­ra of infor­ma­tion con­tained in mod­ern smart­phones. As the Supreme Court has observed about cell­phones: “many of these devices are in fact mini­com­put­ers that also hap­pen to have the capac­i­ty to be used as a tele­phone. They could just as eas­i­ly be called cam­eras, video play­ers, rolodex­es, cal­en­dars, tape recorders, libraries, diaries, albums, tele­vi­sions, maps, or news­pa­pers.”9 Addi­tion­al­ly, “[d]ata on a cell phone can also reveal where a per­son has been … and can recon­struct someone’s spe­cif­ic move­ments down to the minute, not only around town but also with­in a par­tic­u­lar build­ing.”10 For this rea­son, if law enforce­ment could com­pel the use of one’s mind11 for the pro­duc­tion of a smart­phone pass­word, and there­fore gain unfet­tered access to that individual’s unlocked smart­phone, law enforce­ment would have the clos­est thing to the con­tent of that person’s mind in the form of hun­dreds of giga­bytes of infor­ma­tion, as well as the tac­it tes­ti­mo­ny of the phone’s own­er that the infor­ma­tion exists and the own­er pos­sessed and had access to it.12 Thus, the judiciary’s wide­spread exten­sion of the act of pro­duc­tion doc­trine to pro­tect an individual’s locked smart­phone is a tri­umph for the preser­va­tion of the scope and strength of Fifth Amend­ment pro­tec­tions in the face of tech­no­log­i­cal advances that may oth­er­wise erode its impor­tant protections.

How­ev­er, there remains a loom­ing threat to the pro­tec­tions of the Fifth Amend­ment in this con­text. As it stands, courts across the coun­try are divid­ed on both whether the fore­gone con­clu­sion excep­tion to the privilege—which reme­dies any poten­tial vio­la­tion of the priv­i­lege if law enforce­ment can demon­strate with “rea­son­able par­tic­u­lar­i­ty” that it already knows the “loca­tion, exis­tence, and authen­tic­i­ty of the pur­port­ed evi­dence”13 —can or should apply in the con­text of mod­ern smart­phones, and what that appli­ca­tion might look like in this con­text. Some courts have voiced con­cerns about whether the excep­tion should apply at all, since it has only been applied by the Supreme Court in a hand­ful of cas­es that dealt exclu­sive­ly with phys­i­cal, ana­logue busi­ness, or tax records.14 Where­as oth­er courts do believe that it can and should apply to smart­phones, but nonethe­less are split on the method of appli­ca­tion. Some courts assert that the require­ments of the excep­tion should apply only to the pass­word itself, while oth­ers believe the cor­rect method is to apply the require­ments to the actu­al data that is the tar­get of the war­rant sought to be exe­cut­ed on the device.15

Whether the excep­tion can apply in the per­son­al, dig­i­tal con­text of mod­ern smart­phones is no small mat­ter. Any appli­ca­tion of the excep­tion could eas­i­ly end up allow­ing law enforce­ment access to mil­lions of pages of dig­i­tal doc­u­ments, some high­ly per­son­al in nature, such as per­son­al mes­sages with a part­ner or spouse, a dig­i­tal diary, or inti­mate pho­tos, as well as geolo­ca­tion and per­son­al cal­en­dar data, and more—information that law enforce­ment did not nec­es­sar­i­ly know with rea­son­able par­tic­u­lar­i­ty even exist­ed. This is prob­lem­at­ic under the Fifth Amend­ment because tac­it and incrim­i­nat­ing asser­tions could arise from all of the thou­sands or mil­lions of pages of infor­ma­tion law enforce­ment would be grant­ed access to, not mere­ly the small­er amount or more gen­er­al­ized infor­ma­tion that pros­e­cu­tors described to the court in argu­ing for appli­ca­tion of the excep­tion. Thus, allow­ing the excep­tion to apply to smart­phones could eclipse much of the Fifth Amend­ment pro­tec­tions pro­vid­ed in pri­or pro­duc­tion cas­es. As such, the appli­ca­tion of this excep­tion in the nov­el con­text of mod­ern smart­phones would not only allow law enforce­ment to run roughshod over the Fifth Amend­ment, but it would allow tech­no­log­i­cal advances to erode the amendment’s pro­tec­tions, which the Supreme Court has explic­it­ly coun­seled against.16

This Con­tri­bu­tion argues that the fore­gone con­clu­sion excep­tion to the Fifth Amend­ment priv­i­lege should not be applied to the com­pelled pro­duc­tion of smart­phone pass­words or codes. This is because it would nar­row Fifth Amend­ment pro­tec­tions by expand­ing a “nar­row excep­tion”17 which the Court has thus far only seen fit to employ in a very lim­it­ed set of cir­cum­stances.18 Fur­ther­more, the excep­tion is also whol­ly unwork­able in the dig­i­tal con­text giv­en the scope of infor­ma­tion con­tained with­in a smart­phone is unlike any­thing the Court could have con­cep­tu­al­ized at the time it first dis­cerned the excep­tion in 1976.

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Although the Fifth Amend­ment priv­i­lege against self-incrim­i­na­tion pro­tects against “com­pelled tes­ti­mo­ni­al com­mu­ni­ca­tions,”19 the Supreme Court estab­lished in Fish­er v. Unit­ed States that when the gov­ern­ment can show with rea­son­able par­tic­u­lar­i­ty that the infor­ma­tion con­veyed by the act of pro­duc­tion is already known, that implic­it tes­ti­mo­ny is a “fore­gone con­clu­sion,” and the com­mu­nica­tive aspect of pro­duc­tion “adds lit­tle or noth­ing to the sum total of the Government’s infor­ma­tion,” the act of pro­duc­tion is not pro­tect­ed by the Fifth Amend­ment.20 To meet this stan­dard, the gov­ern­ment must show that it already knows “with rea­son­able par­tic­u­lar­i­ty” “the loca­tion, exis­tence, and authen­tic­i­ty of the pur­port­ed evi­dence.”21 When this is the case, “the con­tents of the individual’s mind are not used against him,” so there is no pro­tec­tion from the priv­i­lege.22

The lack of move­ment in this area of law in the almost half cen­tu­ry since the doc­trine was intro­duced is in stark con­trast to the rapid evo­lu­tion of tech­nol­o­gy. Since Fish­er, “tech­nol­o­gy has evolved at a dra­mat­ic pace, cre­at­ing the need to apply the hold­ings, analy­sis, and hypo­thet­i­cals from the Supreme Court’s tril­o­gy of now dat­ed act-of-pro­duc­tion cas­es to facts like­ly nev­er imag­ined at the time.”23 The chal­lenge of apply­ing prece­dent from an ana­logue age to cas­es involv­ing mod­ern tech­nol­o­gy has been reflect­ed by the lan­guage of the Court in cas­es such as Riley v. Cal­i­for­nia and Car­pen­ter v. Unit­ed States.24 In Riley, the Court declined to “‘mechan­i­cal­ly apply’ a predig­i­tal-age con­sti­tu­tion­al rule to dig­i­tal devices.”25 The Court added in Car­pen­ter that it is “oblig­at­ed … to ensure that the ‘progress of sci­ence’ does not erode” the pro­tec­tions of con­sti­tu­tion­al pro­vi­sions.26 Though both Riley and Car­pen­ter cen­tered around the Fourth Amend­ment, Supreme Court jus­tices have writ­ten in sep­a­rate opin­ions that the impli­ca­tions of those deci­sions may not be strict­ly lim­it­ed to a Fourth Amend­ment con­text but can also impli­cate the Fifth Amend­ment.27

In Fish­er, the Supreme Court explic­it­ly lim­it­ed appli­ca­tion of the fore­gone con­clu­sion excep­tion to busi­ness or tax documents—not doc­u­ments of a per­son­al nature—and there­fore the Court “was not resolv­ing the ques­tion of whether such doc­u­ments could be com­pelled” at all.28 The Court expressed reser­va­tions about apply­ing the doc­trine to more per­son­al infor­ma­tion, stat­ing that “[s]pecial prob­lems of pri­va­cy … might be pre­sent­ed by sub­poe­na of a per­son­al diary.”29 Cir­cuit courts have embraced this point of view and explic­it­ly reserved a pos­si­ble excep­tion for such a com­pul­sion.30 There are well-found­ed rea­sons for draw­ing a line between per­son­al and busi­ness or tax infor­ma­tion in the Fifth Amend­ment con­text. The lat­ter cat­e­go­ry has been large­ly con­sid­ered a “unique cat­e­go­ry” in the sense that busi­ness or tax papers have “been sub­ject to com­pelled pro­duc­tion and inspec­tion by the gov­ern­ment for over a cen­tu­ry.”31 How­ev­er, per­son­al doc­u­ments are of an entire­ly dif­fer­ent sort. Per­son­al doc­u­ments can invoke a spe­cial form of pri­va­cy: the pri­va­cy of a crim­i­nal suspect’s mind, and his or her cor­re­spond­ing right not to be forced to incrim­i­nate his or her­self through com­pul­sion of tes­ti­mo­ni­al and self-incrim­i­nat­ing state­ments. Allow­ing a per­son­al writ­ing to be com­pelled for pro­duc­tion sim­ply because the sus­pect in a crim­i­nal case may have cho­sen to write down a “self-incrim­i­nat­ing state­ment[] … rather than keep [it] sealed in her head[] is to strip the Fifth Amend­ment priv­i­lege of its intend­ed pow­er.”32 Com­pelled pro­duc­tion of a per­son­al writ­ing is akin to “pry­ing open a person’s lips to extract a con­fes­sion,” some­thing “our fore­fa­thers” would have found “rep­re­hen­si­ble.”33

This dis­tinc­tion is high­ly sig­nif­i­cant because a mod­ern smart­phone is far more per­son­al in nature than any per­son­al doc­u­ment the Supreme Court may have con­sid­ered in 1976. Cell­phones have become ubiq­ui­tous in dai­ly Amer­i­can life; near­ly every adult owns a cell­phone, and in doing so they “keep on their per­son a dig­i­tal record of near­ly every aspect of their lives—from the mun­dane to the inti­mate.”34 Phones can be, and often are, used to accom­plish near­ly any task in the mod­ern world. Often, peo­ple use these devices as an exten­sion of their own mind.35 For this rea­son, smart­phones today con­tain a wealth of per­son­al infor­ma­tion that fre­quent­ly nev­er would have been writ­ten down or record­ed any­where in the past; at the very least smart­phones con­tain infor­ma­tion that pre­vi­ous­ly almost nev­er would have been held all in the same place.36 By apply­ing the fore­gone con­clu­sion excep­tion to the high­ly per­son­al con­text of mod­ern smart­phones, courts are attempt­ing to extend a “nar­row­ly defined legal excep­tion”37 that the Court explic­it­ly attempt­ed to lim­it to the cir­cum­stances of Fish­er and its progeny.

Fur­ther­more, courts attempt­ing to apply the excep­tion to this unique con­text have encoun­tered chal­lenges in apply­ing it to the com­plex char­ac­ter­is­tics of smart­phones, which inhib­it a work­able appli­ca­tion of the fore­gone con­clu­sion excep­tion in this area. A smart­phone, as the Supreme Court empha­sized in Riley, “differ[s] in both a quan­ti­ta­tive and a qual­i­ta­tive sense from oth­er objects” because many smart­phones today “are in fact mini­com­put­ers that also hap­pen to have the capac­i­ty to be used as tele­phones.”38 The cheap­est ver­sion of 2019’s “top-sell­ing smart­phone, with a capac­i­ty of 64 giga­bytes of data, can hold over 4,000,000 pages of doc­u­ments.”39 These dis­tin­guish­ing char­ac­ter­is­tics of mod­ern smart­phones com­pli­cate cas­es in which courts seek to apply the fore­gone con­clu­sion excep­tion. Some courts have observed that when the gov­ern­ment seeks to com­pel the pro­duc­tion of a smart­phone pass­word, and thus the unlocked phone, law enforce­ment would end up get­ting “access to every­thing on the device, not just those files it can iden­ti­fy with ‘rea­son­able par­tic­u­lar­i­ty.’”40  In oth­er words, these dig­i­tal char­ac­ter­is­tics essen­tial­ly ren­der the lim­it­ing prin­ci­ple of the excep­tion a dead let­ter in this con­text, and allow for the pro­duc­tion to law enforce­ment of far more material—and the implic­it asser­tions from the pro­duc­tion of that material—than they could have obtained from a sus­pect under ana­logue circumstances.

This issue is fur­ther com­pound­ed by the advent of cloud com­put­ing, which adds the addi­tion­al prob­lem that “the data a user views on many mod­ern cell phones may not in fact be stored on the device itself.”41 In pass­word pro­duc­tion cas­es, law enforce­ment often only has a war­rant to search the data on the phone, and only cer­tain, albeit at times high­ly gen­er­al­ized and broad­ly described, data at that.42 As cloud com­put­ing data is stored else­where, it is out­side the legal reach of such a war­rant. How­ev­er, because law enforce­ment may not real­ize the cloud com­put­ing data is mere­ly acces­si­ble through the phone – but not stored there – law enforce­ment could eas­i­ly end up search­ing this data as well, poten­tial­ly dis­cov­er­ing addi­tion­al incrim­i­nat­ing evi­dence.43 Such a search may not even be deemed legal­ly prob­lem­at­ic depend­ing on how courts decide the applic­a­bil­i­ty of the plain view doc­trine to such a sit­u­a­tion. While on its face this appears to be a Fourth Amend­ment con­cern, it rais­es seri­ous Fifth Amend­ment prob­lems as well: Implied tes­ti­mo­ni­al com­mu­ni­ca­tions would arise from any incrim­i­nat­ing evi­dence law enforce­ment dis­cov­ered among the cloud com­put­ing data. Hence, cloud com­put­ing could pro­vide the gov­ern­ment with the ulti­mate abil­i­ty to force incrim­i­nat­ing tes­ti­mo­ny tied to com­pul­sion of poten­tial­ly hun­dreds of thou­sands of doc­u­ments it could not show it pre­vi­ous­ly knew exist­ed.44 It is unsur­pris­ing that attempt­ing to apply the fore­gone con­clu­sion doc­trine in such a vast­ly dif­fer­ent con­text than what it was intend­ed for could result in such per­verse con­se­quences. Today, try­ing to apply this ana­logue doc­trine in a dig­i­tal con­text is like forc­ing “a low-tech peg in a cut­ting-edge hole.”45 It sim­ply does not fit.

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The para­mount con­cern from graft­ing the fore­gone con­clu­sion excep­tion onto caselaw deal­ing with mod­ern cell­phones is that such an appli­ca­tion would ulti­mate­ly bring about an expan­sion of a “decades-old and nar­row­ly defined legal excep­tion to dynam­i­cal­ly devel­op­ing tech­nol­o­gy that was in its infan­cy just a decade ago,” and there­by nar­row a con­sti­tu­tion­al pro­tec­tion.46 As dis­cussed above, the fore­gone con­clu­sion excep­tion was con­cep­tu­al­ized near­ly half a cen­tu­ry ago for a spe­cif­ic ana­logue con­text, and the Supreme Court was hes­i­tant to endorse any broad­er appli­ca­tion out of con­cern for indi­vid­u­als’ pri­va­cy.47 In this con­text, pri­va­cy is a valid con­cern of the Fifth Amend­ment, as what is at issue is the pri­va­cy of an individual’s mind from gov­ern­ment com­pul­sion.48 This con­cern is high­ly potent due to the ubiq­ui­tous use of mod­ern smart­phones in today’s world, and the wealth of incred­i­bly per­son­al infor­ma­tion now stored in phones.49 For this rea­son, com­pelling the pro­duc­tion of the per­son­al data on a cell­phone, not to men­tion the accom­pa­ny­ing tac­it tes­ti­mo­ny of the phone’s own­er, is an intru­sion into the sanc­ti­ty of a suspect’s mind. As such, this is a con­text in which the cau­tion from the Supreme Court in Riley “not to ‘mechan­i­cal­ly apply’ a predig­i­tal-age con­sti­tu­tion­al rule to dig­i­tal devices” should tru­ly be tak­en to heart.50

Although con­cerns of nar­row­ing a con­sti­tu­tion­al pro­tec­tion are of notable impor­tance, it is also imper­a­tive to high­light that apply­ing the fore­gone con­clu­sion excep­tion in this con­text is frankly unwork­able due to com­plex dig­i­tal char­ac­ter­is­tics, as dis­cussed above. These char­ac­ter­is­tics have spurred numer­ous divi­sions among courts. While some low­er courts have attempt­ed to apply the excep­tion in cas­es involv­ing implic­it tes­ti­mo­ny from com­pelled pass­word pro­duc­tion, the vary­ing results and meth­ods of appli­ca­tion only fur­ther illus­trate that courts are try­ing to fit “a low-tech peg in a cut­ting-edge hole.”51 For exam­ple, some courts attempt­ing to apply the fore­gone con­clu­sion excep­tion in these cas­es insist on apply­ing the cri­te­ria for the excep­tion only to the pass­word being com­pelled.52 Thus, these courts assert the test for the excep­tion is whether the state can show “it already knew the” pass­word “exist­ed,” “was in the pos­ses­sion of the accused, and the” pass­word “was authen­tic.”53 The ratio­nale behind such an appli­ca­tion is that the pass­word is the infor­ma­tion being com­pelled, and thus the test should be applied to the password.

How­ev­er, oth­er courts have demon­strat­ed the inher­ent log­i­cal flaw in such an approach. As a Flori­da Dis­trict Court of Appeal high­light­ed in G.A.Q.L. v. State, in cas­es where the state seeks to com­pel the pro­duc­tion of a smart­phone pass­word, “the state seeks the phone pass­code not because it wants the pass­code itself, but because it wants to know what … lie[s] beyond the pass­code wall.”54 Hence, the pass­code is anal­o­gous to the com­bi­na­tion of a wall safe con­tain­ing com­pelled doc­u­ments in an ana­logue sit­u­a­tion; the safe’s com­bi­na­tion is only rel­e­vant to get the doc­u­ments, which are the actu­al tar­get of inves­ti­ga­tors.55 In this ana­logue cir­cum­stance, it is unques­tioned that what inves­ti­ga­tors would need to show is that they can iden­ti­fy “with rea­son­able par­tic­u­lar­i­ty” “the loca­tion, exis­tence, and authen­tic­i­ty of the” doc­u­ments, not the com­bi­na­tion to the safe in which they are held.56 It is the tar­get doc­u­ments to which the Supreme Court applied the excep­tion in its pri­or ana­logue act of pro­duc­tion cas­es.57 This is why courts apply­ing the excep­tion to the data pro­tect­ed by the pass­code have empha­sized that “the object of the fore­gone con­clu­sion excep­tion is not the pass­word itself, but the data the state seeks behind the pass­code wall” and expound­ed that “[t]o find oth­er­wise would expand the con­tours of the fore­gone con­clu­sion excep­tion so as to swal­low the pro­tec­tions of the Fifth Amend­ment.”58 This diver­gence of views among low­er courts, includ­ing both with­in and between states, fur­ther illus­trates why apply­ing this ana­logue prece­dent in a dig­i­tal con­text can­not be sustained.

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Nonethe­less, some judges rul­ing on the issue have voiced con­cerns that dis­al­low­ing the fore­gone con­clu­sion excep­tion in this con­text would deny law enforce­ment access to key evi­dence.59 How­ev­er, declin­ing to extend the excep­tion into this nov­el ter­ri­to­ry would not take all evi­dence on a cell­phone off the table. For instance, law enforce­ment agen­cies could sub­poe­na spe­cif­ic mes­sag­ing records from com­pa­nies such as Face­book or Snapchat, as these mes­sages are sent via the com­pa­nies’ servers and thus shared with those com­pa­nies.60 They could also sub­poe­na phone records direct­ly from phone com­pa­nies, and seek infor­ma­tion from pri­vate com­pa­nies under the Stored Com­mu­ni­ca­tions Act.61

Even if courts were to allow the pri­vate data stored on cell­phones, and only there, to be obtained by law enforce­ment for use in pros­e­cu­tion, that does not mean courts must do so by apply­ing the for­gone con­clu­sion excep­tion to allow com­pelled pass­word pro­duc­tion and its cor­re­spond­ing implic­it tes­ti­mo­ni­al con­ces­sions. There are still oth­er avenues. Law enforce­ment can engage third par­ties to hack or crack devices, or employ the soft­ware used by such indi­vid­u­als or com­pa­nies, use mobile device foren­sic tools, or reach out to man­u­fac­tur­ers or car­ri­ers for assis­tance as a last resort.62 These are all avail­able options that could allow inves­ti­ga­tors to obtain much of the evi­dence they would need with­out argu­ing for courts to severe­ly erode an impor­tant con­sti­tu­tion­al pro­tec­tion as an easy inves­tiga­tive shortcut.

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The fore­gone con­clu­sion excep­tion was con­cep­tu­al­ized close to half a cen­tu­ry ago for the ana­logue cir­cum­stance of com­pelling the pro­duc­tion of phys­i­cal busi­ness or tax records, and, even then, the Supreme Court showed hes­i­tan­cy to expand the scope of the excep­tion beyond that lim­it­ed area. While the law regard­ing the excep­tion may have stag­nat­ed, the advance­ment of tech­nol­o­gy cer­tain­ly has not, pos­ing new issues, com­pli­ca­tions, and ques­tions for courts faced with argu­ments in favor of the exception’s expan­sion. The Supreme Court writ­ing sev­er­al decades ago nev­er could have imag­ined the devices that are so com­mon­place to near­ly every Amer­i­can today, and that have become an inte­gral part of every­day life. Smart­phones today are per­son­al diaries, date­books, track­ing devices, stor­age for cor­re­spon­dence, and so much more. Apply­ing the excep­tion to this inti­mate con­text would be an expan­sion of a “nar­row­ly defined legal excep­tion”63 to a space for which it was not designed, in which it has proven unwork­able, and that, depend­ing on the method of appli­ca­tion, could allow the excep­tion to swal­low the rule. Con­cerns regard­ing law enforce­ment being unable to access key evi­dence are unfound­ed, for as tech­nol­o­gy has advanced, new meth­ods of obtain­ing evi­dence have devel­oped which do not neces­si­tate the diminu­tion of con­sti­tu­tion­al pro­tec­tions. Addi­tion­al­ly, while some courts may nonethe­less believe it is appro­pri­ate to attempt to apply this ana­logue excep­tion in a dig­i­tal con­text, the divide that has arisen among courts on this issue fur­ther illus­trates exact­ly why such a posi­tion is unsustainable.

This is an area in which the law is at a dan­ger­ous risk of sac­ri­fic­ing the brunt of an impor­tant con­sti­tu­tion­al pro­tec­tion to the tide of advanc­ing tech­nol­o­gy and law enforce­ment con­ve­nience. Such an ero­sion of the right against self-incrim­i­na­tion should be imped­ed by dis­al­low­ing the unprece­dent­ed expan­sion of a decades-old legal doc­trine to mod­ern smartphones.


* Heather Glober­man is a J.D. Can­di­date (2022) at New York Uni­ver­si­ty School of Law. This piece arose from the prob­lem pre­sent­ed at the 2021 Weschler Nation­al Crim­i­nal Law Moot Court Com­pe­ti­tion at Uni­ver­si­ty at Buf­fa­lo School of Law. The ques­tion pre­sent­ed was two-fold, first ask­ing whether the com­pelled pro­duc­tion of a cell­phone pass­code was tes­ti­mo­ni­al for Fifth Amend­ment pur­pos­es under the act of pro­duc­tion doc­trine, and if so, whether the fore­gone con­clu­sion excep­tion to the priv­i­lege could apply to allow the pro­duc­tion. This Con­tri­bu­tion rep­re­sents a refine­ment of the argu­ments made by the author dur­ing the competition.

1. U.S. Con­st. amend. V.

2. Unit­ed States v. Doe (“Doe I”), 465 U.S. 605, 611 (1984) (empha­sis added) (cit­ing Unit­ed States v. Fish­er, 425 U.S. 391, 409 (1976)).

3. See, e.g., Doe v. Unit­ed States (“Doe II”), 487 U.S. 201, 209–10 (1988) (explain­ing that “the Fifth Amend­ment priv­i­lege against self-incrim­i­na­tion applies to acts that imply asser­tions of fact” and whether those asser­tions are pro­tect­ed depends on if they “explic­it­ly or implic­it­ly, relate a fac­tu­al asser­tion or dis­close infor­ma­tion”) (empha­sis added); Fish­er v. Unit­ed States, 425 U.S. 391, 410 (1976) (“The act of pro­duc­ing evi­dence in response to a sub­poe­na . . . has com­mu­nica­tive aspects of its own, whol­ly aside from the con­tents of the papers pro­duced.”).

4. Unit­ed States v. Hubbell, 530 U.S. 27, 38 (2000) (quot­ing Hoff­man v. Unit­ed States, 341 U.S. 479, 486 (1951)).

5. Doe II, 487 U.S. at 219 (Stevens, J., dissenting).

6. Unit­ed States v. Doe (In re Grand Jury Sub­poe­na Duces Tecum dat­ed Mar. 25, 2011), 670 F.3d 1335, 1346 (11th Cir. 2012).

7. See Seo v. State, 148 N.E.3d 952, 955 (Ind. 2020) (explain­ing, for exam­ple, that “[g]iving law enforce­ment an unlocked smart­phone com­mu­ni­cates to the State, at a min­i­mum, that (1) the sus­pect knows the pass­word; (2) the files on the device exist; and (3) the sus­pect pos­sess­es those files.”).

8. See, e.g., In re Grand Jury Sub­poe­na Duces Tecum dat­ed Mar. 25, 2011, 670 F.3d at 1346 (apply­ing the pro­tec­tion to the act of decrypt­ing and pro­duc­ing com­put­er hard dri­ves); G.A.Q.L. v. State, 257 So. 3d 1058, 1059 (Fla. Dist. Ct. App. 2018) (apply­ing the pro­tec­tion to the act of unlock­ing an iPhone and an iTunes account); In re Search of a Res­i­dence in Oak­land, 354 F. Supp. 3d 1010, 1015–16 (N.D. Cal. 2019) (apply­ing the pro­tec­tion to the com­pelled unlock­ing of a device using an individual’s fingerprint).

9. Riley v. Cal­i­for­nia, 573 U.S. 373, 393 (2014).

10. Id. at 396 (cita­tion omitted). 

11. See Pol­lard v. State, 287 So. 3d 649, 653 (Fla. Dist. Ct. App. 2019) (“Forc­ing a defen­dant to dis­close a pass­word, whether by speak­ing it, writ­ing it down, or phys­i­cal­ly enter­ing it into a cell­phone, com­pels infor­ma­tion from that person’s mind and there­by falls with­in the core of what con­sti­tutes a tes­ti­mo­ni­al disclosure.”).

12. See Seo, 148 N.E.3d at 955 (“Giv­ing law enforce­ment an unlocked smart­phone com­mu­ni­cates to the State, at a min­i­mum, that (1) the sus­pect knows the pass­word; (2) the files on the device exist; and (3) the sus­pect pos­sess­es those files.”); id. at 960 (“[Smart­phones] can con­tain, in dig­i­tal form, the ‘com­bined foot­print of what has been occur­ring social­ly, eco­nom­i­cal­ly, per­son­al­ly, psy­cho­log­i­cal­ly, spir­i­tu­al­ly and some­times even sex­u­al­ly, in the owner’s life.’” (quot­ing Unit­ed States v. Dji­bo, 151 F. Supp. 3d 297, 310 (E.D.N.Y. 2015))); see also Unit­ed States v. Kirschn­er, 823 F. Supp. 2d 665, 669 (E.D. Mich. 2010) (explain­ing that forc­ing a defen­dant to reveal a pass­word for a com­put­er is “seek­ing tes­ti­mo­ny from the Defen­dant, requir­ing him to divulge through his men­tal process­es his password”).

13. In re Grand Jury Sub­poe­na Duces Tecum dat­ed Mar. 25, 2011, 670 F.3d at 1344.

14. See, e.g., In re Grand Jury Sub­poe­na Duces Tecum Dat­ed Oct. 29, 1992, 1 F.3d 87, 95 (2d Cir. 1993) (Alti­mari, J., dis­sent­ing) (cit­ing Fish­er v. Unit­ed States, 425 U.S. 391, 414 (1976)) (not­ing that the major­i­ty relied on Fish­er to sup­port its con­tention that the fore­gone excep­tion, which in Fish­er was applied to the pro­duc­tion of doc­u­ments pre­pared by accoun­tants that relat­ed to their clients’ tax returns, should not apply in the con­text of mod­ern smart­phones); id. at 96 (Alti­mari, J., dis­sent­ing) (quot­ing In re Grand Jury Pro­ceed­ings, 632 F.2d 1033, 1042 (3d Cir. 1980) (declin­ing to allow the com­pul­sion of “self-incrim­i­nat­ing pri­vate papers, such as per­son­al date books”)); Butch­er v. Bai­ley, 753 F.2d 465, 469 (6th Cir. 1985) (cita­tions omit­ted) (not­ing from pre­vi­ous Supreme Court cas­es that the fore­gone excep­tion has been applied to an accountant’s work­pa­pers and busi­ness records); In re Stein­berg, 837 F.2d 527, 530 (1st Cir. 1988) (cita­tions omit­ted) (not­ing from pre­vi­ous Supreme Court cas­es that if the con­tents of pri­vate papers are pro­tect­ed at all, it is only in rare sit­u­a­tions); Unit­ed States v. Mason, 869 F.2d 414, 416 (8th Cir. 1989); Seo, 148 N.E.3d at 962 (“It is not sur­pris­ing that courts to recent­ly address this issue—how the Fifth Amend­ment applies to the com­pelled pro­duc­tion of unlocked elec­tron­ic devices—have either declined to extend the fore­gone con­clu­sion excep­tion or have not men­tioned it at all.”).

15. Com­pare State v. Stahl, 206 So. 3d 124, 134 (Fla. Dist. Ct. App. 2016) (find­ing that the fore­gone con­clu­sion excep­tion applied only to the con­tent of the pass­word), and State v. Andrews, 234 A.3d. 1254, 1273 (N.J. 2020) (apply­ing the fore­gone con­clu­sion excep­tion to the cell­phone pass­word itself), with G.A.Q.L. v. State, 257 So. 3d 1058, 1063 (Fla. Dist. Ct. App. 2018) (cita­tion omit­ted) (“It is crit­i­cal to note here that when it comes to data locked behind a pass­code wall, the object of the fore­gone con­clu­sion excep­tion is not the pass­word itself, but the data the state seeks behind the pass­code wall.”), and In re Grand Jury Sub­poe­na Duces Tecum dat­ed Mar. 25, 2011, 670 F.3d at 1348–49 (apply­ing the fore­gone con­clu­sion excep­tion to the infor­ma­tion pro­tect­ed by com­put­er encryp­tion, not to encryp­tion keys or codes).

16. See, e.g., Car­pen­ter v. Unit­ed States, 138 S. Ct. 2206, 2223 (2018) (assert­ing that “the Court is oblig­at­ed . . . to ensure that the ‘progress of sci­ence’ does not erode” the pro­tec­tions of con­sti­tu­tion­al amend­ments (quot­ing Olm­stead v. Unit­ed States, 277 U.S. 438, 474 (1928))).

17. Com­mon­wealth v. Jones, 117 N.E.3d 702, 721 (Mass. 2019) (Lenk, J., concurring).

18. See, e.g., Fish­er, 425 U.S. at 411 (estab­lish­ing the excep­tion in a case deal­ing with doc­u­ments per­tain­ing to tax returns and active­ly held by the lawyers of those under inves­ti­ga­tion); Unit­ed States v. Doe (“Doe I”), 465 U.S. 605, 610–12 (1984) (dis­cussing the excep­tion in a case deal­ing with busi­ness records); Unit­ed States v. Hubbell, 530 U.S. 27, 45 (2000) (find­ing the excep­tion was not met regard­ing 13,120 pages of finan­cial documents).

19. Doe I, 465 U.S. at 611 (cita­tions omitted).

20. Fish­er, 425 U.S. at 411.

21. Unit­ed States v. Doe (In re Grand Jury Sub­poe­na Duces Tecum dat­ed Mar. 25, 2011), 670 F.3d 1335, 1344 (11th Cir. 2012).

22. Id.

23. In re Sin­gle-Fam­i­ly Home & Attached Garage, No. 17 M 85, 2017 U.S. Dist. LEXIS 170184, at *17 (N.D. Ill. Feb. 21, 2017).

24. Riley v. Cal­i­for­nia, 573 U.S. 373, 401 (2014) (not­ing how apply­ing the “ana­logue test” to cel­lu­lar data for the search inci­dent to arrest excep­tion would be gen­er­al­ly unwork­able and cre­ate dif­fi­cult line-draw­ing prob­lems); Car­pen­ter v. Unit­ed States, 138 S. Ct. 2206, 2222 (2018) (cita­tion omit­ted) (“When con­fronting new con­cerns wrought by dig­i­tal tech­nol­o­gy, this Court has been care­ful not to uncrit­i­cal­ly extend exist­ing precedents.”).

25. In re Search War­rant No. 5165, 470 F. Supp. 3d 715, 734 (E.D. Ky. 2020) (quot­ing Riley, 573 U.S. at 406 (Ali­to, J., concurring)).

26. Car­pen­ter, 138 S. Ct. at 2223 (2018) (quot­ing Olm­stead v. Unit­ed States, 277 U.S. 438, 473–74 (1928) (Bran­deis, J., dissenting)).

27. See, e.g., id. at 2253 (Ali­to, J., dis­sent­ing) (assert­ing that the deci­sion of the Court seemed to relate to Boyd v. Unit­ed States, a case involv­ing the Fifth Amend­ment priv­i­lege); Car­pen­ter, 138 S. Ct. at 2271 (Gor­such, J., dis­sent­ing) (stat­ing that the Court, as a result of its rea­son­ing and deci­sion in Car­pen­ter, would “do well to recon­sid­er the scope of the Fifth Amend­ment”); Riley, 573 U.S. at 406–07 (Ali­to, J., dis­sent­ing) (“I agree that we should not mechan­i­cal­ly apply the rule used in the predig­i­tal era to” the con­text of a cellphone).

28. In re Grand Jury Duces Tecum Dat­ed Oct. 29, 1992, 1 F.3d 87, 95 (2d Cir. 1993) (Alti­mari, J., dis­sent­ing) (cit­ing Fish­er v. Unit­ed States, 425 U.S. 391, 414 (1976)).

29. Fish­er, 425 U.S. at 401 n.7.

30. See, e.g., In re Grand Jury Duces Tecum Dat­ed Oct. 29, 1992, 1 F.3d at 96 (Alti­mari, J., dis­sent­ing) (quot­ing In re Grand Jury Pro­ceed­ings, 632 F.2d 1033, 1042 (3d Cir. 1980) (declin­ing to allow the com­pul­sion of “self-incrim­i­nat­ing pri­vate papers, such as pure­ly per­son­al date books”)). Oth­er cir­cuits have also stat­ed there could be some form of excep­tion or carve out for per­son­al doc­u­ments, pre­vent­ing their com­pul­sion. See, e.g., Butch­er v. Bai­ley, 753 F.2d 465, 469 (6th Cir. 1985) (deal­ing with com­pelled pro­duc­tion of per­son­al records relat­ed to prop­er­ty in bank­rupt­cy pro­ceed­ings, and not­ing that there may pos­si­bly be pro­tec­tion for some records which are “so inti­mate­ly per­son­al as to evoke seri­ous con­cern over pri­va­cy inter­ests”); In re Stein­berg, 837 F.2d 527, 530 (1st Cir. 1988) (allow­ing pro­duc­tion of note­books used for record keep­ing by the defen­dants at least in part because “[e]ven if the Fifth Amend­ment pro­tects the con­tents of some vol­un­tar­i­ly pre­pared per­son­al papers, it cer­tain­ly does not pro­tect orga­ni­za­tion­al records of this type”); Unit­ed States v. Mason, 869 F.2d 414, 416 (8th Cir. 1989) (affirm­ing a low­er court find­ing that the pock­et day timers at issue were not the sub­ject of a Fifth Amend­ment vio­la­tion because they did not con­sti­tute per­son­al diaries). 

31. Com­mon­wealth v. Davis, 220 A.3d 534, 557 (Pa. 2019) (cit­ing Shapiro v. Unit­ed States, 335 U.S. 1, 33 (1948)).

32. In re Grand Jury Duces Tecum Dat­ed Oct. 29, 1992, 1 F.3d at 96 (Alti­mari, J., dissenting).

33. Id.

34. Riley, 573 U.S. at 395; see also Mobile Fact Sheet, Pew Rsch. Ctr. (Apr. 7, 2021), https://www.pewresearch.org/internet/fact-sheet/mobile/ (“The vast major­i­ty of Amer­i­cans – 97% – now own a cell­phone of some kind.”). 

35. See Andy Clark & David J. Chalmers, The Extend­ed Mind, 58 Analy­sis 7, 10 (1998) (assert­ing that inter­ac­tion with and reliance on exter­nal tools, like tech­nol­o­gy, to com­plete cer­tain tasks employs a cog­ni­tive process not lim­it­ed to with­in the con­fines of the human head, but that makes use of active exter­nal stim­uli to engage in cer­tain cog­ni­tive functions).

36. See Riley, 573 U.S. at 396–97 (“A phone … con­tains a broad array of pri­vate infor­ma­tion nev­er found in a home in any form – unless the phone is [present].”).

37. Seo, 148 N.E.3d at 962.

38. Riley, 573 U.S. at 393.

39. Seo, 148 N.E.3d at 959–60.

40. Id. at 960.

41. Riley, 573 U.S. at 397.

42. See Seo, 148 N.E.3d at 960–61 (“Rec­og­niz­ing these real­i­ties, sev­er­al courts have deter­mined that the government—prior to com­pelling a sus­pect to unlock their smartphone—must specif­i­cal­ly iden­ti­fy the files it seeks with rea­son­able par­tic­u­lar­i­ty. But even then, the gov­ern­ment should have access to only those files.”) (empha­sis added).

43. Id.

44. Cf. id. (“[A] cloud-stor­age service—like iCloud or Dropbox—installed on the device … could con­tain hun­dreds of thou­sands of files.”).

45. Id. at 961.

46. Id. at 962.

47. See Fish­er, 425 U.S. at 401 n.7.

48. See In re Grand Jury Sub­poe­na Duces Tecum Dat­ed Oct. 29, 1992, 1 F.3d at 96 (Alti­mari, J., dissenting).

49. See, e.g., In re Search of a Res­i­dence in Oak­land, Cal., 354 F. Supp. 3d 1010, 1017 (N.D. Cal. 2019) (“A phone … con­tains a broad array of pri­vate infor­ma­tion nev­er found in a home in any form – unless the phone is [present].”).

50. In re Search War­rant No. 5165, 470 F. Supp.3d 715, 734 (E.D. Ky. 2020) (quot­ing Riley v. Cal­i­for­nia, 573 U.S. 373, 406 (2014)).

51. Seo, 148 N.E.3d at 960–61.

52. State v. Stahl, 206 So. 3d 124, 134 (Fl. Dist. Ct. App. 2016) (find­ing that the fore­gone con­clu­sion excep­tion applied only to the con­tent of the pass­word); State v. Andrews, 243 N.J. 447, 479 (2020) (apply­ing the fore­gone con­clu­sion excep­tion to the cell­phone pass­word itself).

53. Stahl, 206 So. 3d at 135–36 (cit­ing In re Grand Jury, 670 F.3d at 1344).

54. G.A.Q.L. v. State, 257 So. 3d 1058, 1062 (Fla. Dist. Ct. App. 2018). See also Com­mon­wealth v. Davis, 220 A.3d 534, 557 (Pa. 2019) (apply­ing the fore­gone con­clu­sion excep­tion to the con­tents of the device, not mere­ly to the password).

55. Hubbell, 530 U.S. at 45 (apply­ing the excep­tion to the 13,120 pages of doc­u­ments sought by the gov­ern­ment); G.A.Q.L., 257 So. 3d at 1064 (“The ‘evi­dence sought’ in a pass­word pro­duc­tion case such as this is not the pass­word itself; rather, it is the actu­al files or evi­dence on the locked phone” and there­fore this evi­dence is to what the fore­gone con­clu­sion excep­tion should apply). 

56. In re Grand Jury Sub­poe­na Duces Tecum dat­ed Mar. 25, 2011, 670 F.3d at 1344.

57. See Fish­er, 425 U.S. at 410; Hubbell, 530 U.S. at 43; Doe II, 487 U.S. at 209.

58. G.A.Q.L., 257 So. 3d at 1063.

59. See, e.g., Com­mon­wealth v. Davis, 220 A.3d 534, 557 (Pa. 2019) (stat­ing that he would find that pro­duc­tion of mul­ti­char­ac­ter pass­words and com­pelled bio­met­ric unlock­ing to be sub­ject to the fore­gone con­clu­sion excep­tion because hold­ing to the con­trary “would cre­ate an entire class of evi­dence … that is imper­vi­ous to gov­ern­men­tal search. This could poten­tial­ly alter the bal­ance of pow­er between gov­ern­men­tal author­i­ties and crim­i­nals, and ren­der law enforce­ment inca­pable of access­ing rel­e­vant evi­dence.”) (Baer, J., dissenting).

60. An exam­ple of this strat­e­gy can be seen in Unit­ed States v. Wer­lein, in which numer­ous sub­poe­nas were issued to pri­vate com­pa­nies, such as Face­book, Yahoo.com, and Qwest Com­mu­ni­ca­tions, to obtain rel­e­vant infor­ma­tion. No. 10–59 (DWF/FLN), 2010 U.S. Dist. LEXIS 70725, at *12-*13 (June 24, 2010).

61. See Seo, 148 N.E.3d at 962 (cit­ing 18 U.S.C. 121 §§ 2701–2713 (2018)).

62. See, e.g., Alex Betschen, Shin­ing a Light on Fed­er­al Law Enforcement’s Use of Com­put­er Hack­ing Tools, Just Secu­ri­ty (Sept. 19, 2018), https://www.justsecurity.org/60785/shining-light-federal-law-enforcements-computer-hacking-tools/ (“A num­ber of reports show that U.S. law enforce­ment is invest­ing heav­i­ly in hack­ing tech­nol­o­gy,” includ­ing soft­ware to hack iPhones and the soft­ware used by third par­ty hack­ing com­pa­nies such as Cellebrite); Sila­ditya Ray, Over 2,000 U.S. Law Enforce­ment Agen­cies Have Tools to Unlock Encrypt­ed Phones, Report Finds, Forbes (Oct. 21, 2020, 9:34 AM), https://www.forbes.com/sites/siladityaray/2020/10/21/over-2000-us-law-enforcement-agencies-have-tools-to-unlock-encrypted-phones-report-finds/?sh=41b57fdd7a6e (“At least 2,000 law enforce­ment agen­cies in all 50 states of the U.S. now have access to tools that allow them to get into locked or encrypt­ed smart­phones and extract data.”); Susan Lan­dau, Law Enforce­ment Is Access­ing Locked Devices Quite Well, Thank You, Law­fare (Dec. 7, 2020, 8:01 AM), https://www.lawfareblog.com/law-enforcement-accessing-locked-devices-quite-well-thank-you (dis­cussing reports of law enforce­ment use of mobile device foren­sic tools to get through encryp­tion on smart­phones); Ryan Whit­wam, Police Can Unlock Any iPhone with Cellebrite’s New Tool, Extreme­Tech (June 17, 2019, 1:04 PM), https://www.extremetech.com/mobile/293337-police-can-unlock-any-iphone-with-cellebrites-new-tool (“Sev­er­al com­pa­nies offer device unlock­ing ser­vices to law enforce­ment, but they are lim­it­ed by devices and soft­ware ver­sions.”); Cell Phone Unlock­ing, Fed. Comm­c’ns Com­m’n, https://www.fcc.gov/general/cell-phone-unlocking (last vis­it­ed Dec. 28, 2021) (“A car­ri­er may auto­mat­i­cal­ly unlock a device after cer­tain con­di­tions are met, send instruc­tions to con­sumers on how to unlock a device upon request, or com­plete the unlock­ing process in store.”).

63. Seo, 148 N.E.3d at 962.