{"id":5832,"date":"2018-12-21T15:19:56","date_gmt":"2018-12-21T19:19:56","guid":{"rendered":"http:\/\/ncjolt.org\/?p=5832"},"modified":"2020-06-04T20:52:29","modified_gmt":"2020-06-04T20:52:29","slug":"florida-appeal-court-provides-passcodes-protection-under-fifth-amendment","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/ncjolt\/blogs\/florida-appeal-court-provides-passcodes-protection-under-fifth-amendment\/","title":{"rendered":"Florida Appeal Court Provides Passcodes Protection Under Fifth Amendment"},"content":{"rendered":"\n

On October 24, 2018, the Fourth District Court of Appeal of\nthe State of Florida decided<\/a>\nin G.A.Q.L. v. State of Florida<\/em> that\nunder the Fifth Amendment, a minor could not be compelled to \u201cdisclose the\ncontents of his own mind\u201d by providing passwords for a cell phone and iTunes\naccount. The decision follows other\ncourts<\/a> that have afforded to Fifth Amendment protection to cell\nphone passwords, which is interestingly distinct from fingerprint passcode\nprotection, which is not\ntestimony<\/a> and therefore does not receive Fifth Amendment protection.<\/p>\n\n\n

In G.A.Q.L. v. State\nof Florida<\/em>, a minor had crashed his car while speeding, which resulted in\nthe death of a passenger. The minor\u2019s blood test at the hospital showed a .086\nblood-alcohol content, and the surviving passenger told police that the group\nhad been drinking vodka earlier and that the minor had communicated about it on\nhis cell phone. Police obtained a warrant to search the cell phone for data,\nphotographs, content, text messages, and other information, and thereafter\nsought an order compelling the minor to provide the passcodes for the cell\nphone and the iTunes account associated with it (the iTunes password was needed\nto complete an update.) <\/p>\n\n\n

Although the minor argued that compelled disclosure of the passcodes\nviolated his Fifth Amendment rights, the trial court disagreed, and concluded\nthat the minor\u2019s passcodes \u201care not testimonial in and of themselves . . .\n<\/p>\n\n

[and]<\/p>\n\n\n

merely allow the State to access the phone, which the State has a warrant to search.\u201d They also stated that because the state had established the existence, possession, and authenticity of the documents as a \u201cforegone conclusion,\u201d which contributed to their determination that the act of producing the passcodes was not testimonial. <\/p>\n\n\n

Future decisions may either produce a majority following G.A.Q.L. <\/em>and\u00a0its\u00a0predecessors or a split with one side offering fewer protections on passwords.<\/p><\/blockquote>\n\n\n

The [<\/a>appellate court disagreed, comparing the production of a password to a combination to a wall safe, rather than being forced to surrender a key to a strongbox. It concluded that revealing the passcode would be engaging in a testimonial act utilizing the \u201ccontents of his mind\u201d and demonstrating as a factual matter that he knew how to access the phone. It also dismissed the trial court\u2019s application of the \u201cforegone conclusion\u201d exception, because the state could not establish any files with reasonable particularity that it was seeking.<\/p>\n\n\n

This is a continually developing area of law as jurisdictions continue to collide with developing technologies. Future decisions may either produce a majority following G.A.Q.L.<\/em> and its predecessors, or a split with one side offering fewer protections on passwords. Depending on the ubiquity of fingerprint or facial recognition password technology, there may be an unusual practical split in compelled access to cell phones. Although the functional result \u2013 accessing an array of data within a cell phone \u2013 is the same regardless of the type of password protection, the law appears to be developing in a direction that physically-oriented applications will not receive Fifth Amendment protection. Therefore, while fingerprint and facial recognition passcode protections may be safer from casual abuse, only an old-fashioned password (and the Fifth Amendment) can protect you from being compelled to provide access to police.<\/p>\n\n\n

\n","protected":false},"excerpt":{"rendered":"

On October 24, 2018, the Fourth District Court of Appeal of the State of Florida decided in G.A.Q.L. v. State of Florida that under the Fifth Amendment, a minor could not be compelled to \u201cdisclose the contents of his own mind\u201d by providing passwords for a cell phone and iTunes account. The decision follows other …<\/a><\/p>\n","protected":false},"author":1,"featured_media":5833,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[51],"tags":[],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/5832"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/comments?post=5832"}],"version-history":[{"count":1,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/5832\/revisions"}],"predecessor-version":[{"id":6890,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/5832\/revisions\/6890"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media\/5833"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media?parent=5832"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/categories?post=5832"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/tags?post=5832"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}