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.
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.
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.
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.
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).
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).
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).
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.