Trenton, New Jersey—On Tuesday, January 21, at 1 pm, EFF Senior Staff Attorney Andrew Crocker will ask the New Jersey Supreme Court to rule that the state can’t force a defendant to turn over the passcode for his encrypted iPhone under the Fifth Amendment, which protects American’s rights against self-incrimination.
The Fifth Amendment states that people cannot be forced to incriminate themselves, and it’s well settled that this privilege against self-incrimination covers compelled “testimonial” communications, including physical acts. However, courts have split over how to apply the Fifth Amendment to compelled decryption of encrypted devices.
EFF, ACLU, and ACLU of New Jersey filed a brief in the case State v. Andrews arguing that the state can’t compel a suspect to recall and use information that exists only in his memory to aid law enforcement’s prosecution of him.
At Tuesday’s hearing, Crocker will tell the court that reciting, writing, typing or otherwise reproducing a password from memory is testimony protected by the Fifth Amendment.
Read the amicus brief EFF filed in the Andrews case:
WHO: EFF Senior Staff Attorney Andrew Crocker
WHAT: New Jersey v. Andrews
Supreme Court of New Jersey
25 Market St.
Trenton, NJ 08611
The argument will also be live-streamed.
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Author: Karen Gullo