#baust

BAUST job circular December 2016

BAUST job circular December 2016 Bangladesh Army University of Science & Technology (BAUST), the pioneer technical institutes of Armed Forces, ongoing its journey from 15th February 2015.   Post Name: Associate Professor , Assistant Professor ,Lecturer Institute Name: Bangladesh army university of science and technology saidpur Number of job vacancies: See the circular Type of Jobs: Education Job…

New Post has been published on http://www.rockindlaw.com/the-phone-passcodes-you-cannot-be-forced-to-disclose-it/

The Phone Passcodes: You Cannot Be Forced To Disclose It

In a recent high profile case, a police officer went behind our backs and arrested our client despite a promise not to do so. Why? We have our suspicions but according to him, he did so to get our client’s mobile phone.  He had a search warrant for our client’s phone but what happened after that was even more troubling. The officer demanded of my co-counsel and our client that the police be given the passcode to the phone.  The officer even insisted that our client and counsel was in contempt of court for not giving over the passcode.   Accordingly, Rockind Law undertook this unique digital age issue: can the compel someone to turn over their passcode when the police have a search warrant? state official demanded that 

​While some lawyers might panic under similar circumstances, we did not.  We are now tackling this area in order to ensure that others know their rights:  a person cannot be sanctioned for refusing to disclose information known to him to law enforcement nor can counsel be sanctioned for protecting Defendant’s constitutional rights.

​The Fifth Amendment to the US Constitution protects Defendant from compelled self-incrimination: “…nor shall [a person] be compelled in any criminal case to be a witness against himself.”  A person is protected from having to provide testimonial evidence against himself, i.e., being forced to “reveal his knowledge of facts relating him to the offense” or “share his thoughts and beliefs with the government.” United States v. Kirschner, 823 F. Supp. 2d 665, 668 (E.D. Mich. 2010).  The United States Supreme Court applied this reasoning in protecting a target from being compelled to catalogue responses to a subpoena duces tecum, likening it to forcing a person to disclose a combination to a wall safe.   In United States v. Hubbell, 530 U.S. 27 (2000), the Supreme Court applied the Fifth Amendment in a similar scenario to the case at bar:

It was unquestionably necessary for respondent to make extensive use of “the contents of his own mind” in identifying the hundreds of documents responsive to the requests in the subpoena. See Curcio v. United States, 354 U. S. 118, 128 (1957); Doe v. United States, 487 U. S., at 210. The assembly of those documents was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox. Id., at 210, n. 9. 

  The United States District Court for the Eastern District of Michigan reached a similar conclusion in a case recently. In United States v. Kirschner, 823 F. Supp. 2d 665 (ED Mich 2010)(Opinion Attached As Exhibit “A”), the Hon. Paul Borman held that compelling the accused to disclose a password to an encrypted file would require “producing specific testimony asserting a fact” in violation of his Fifth Amendment right against self-incrimination.

​Where the police believe that a mobile phone contains incriminating evidence, admitting that one knows the passcode to that phone is forcing him to “reveal his knowledge of facts relating him to the offense” or “share his thoughts and beliefs with the government.” Kirschner, Id.   Various courts have considered whether a person can be compelled to disclose a mobile phone passcode and held that compelling a person to disclose a passcode is a violation of the Fifth Amendment protection against compelled self-incrimination. See Securities and Exchange Commission v Huang, Case No. 2:15-cv-00269-MAK (Opinion Attached As Exhibit “B”); Virginia v. Baust, No. CR14-1439 (Va. Cir. Ct. Oct. 28, 2014)(Opinion Attached As Exhibit “C”).

​In short, an accused cannot be compelled to disclose a passcode to a mobile phone. Forcing him to disclose a passcode is testimonial in nature in that it requires him to disclose matters known to him and in his mind – information that could arguably connect him to its contents, contents that law enforcement deems incriminating.  The Fifth Amendment protects him from this compelled disclosure.