NJ Opposes SCOTUS Hearing Cellphone Privacy Case

The U.S. Supreme Court should decline again to review when it’s OK for police to require someone to unlock an encrypted cellphone, New Jersey said Friday in docket 20-937. In Andrews v. New Jersey, a prosecutor secured a court order directing Robert Andrews, an Essex County sheriff's officer the time, to turn over passwords for two cellphones. Andrews challenged, citing Fifth Amendment protections, but the New Jersey Supreme Court said those protections don’t apply to passwords. No new circuits or state supreme courts have weighed in since October, when the high court chose not to hear a similar Pennsylvania case (see 2010050042), New Jersey told SCOTUS. "Petitioner claims a different result is nevertheless warranted, but he faces a significant threshold problem: Petitioner has not yet gone to trial, let alone been convicted and sentenced.” Future trial court proceedings “may obviate the need for review of any Fifth Amendment issues in this case,” the state said. New Jersey disagreed there's a judicial split over application of the “foregone conclusion” doctrine, which says it’s not self-incriminating to give the state information it already knows. “Petitioner alleges a split over whether a suspect could be required to verbally ‘communicate’ the ‘pure testimony’ of his device’s passcode. ... Yet in this case, Petitioner will be allowed to directly enter the passcode without divulging it.” The state Supreme Court was correct, New Jersey said. "Whenever a suspect enters his passcode, he is only confirming that he ... knows the code. If the government knows as much, that suspect has not incriminated himself and the Fifth Amendment is not offended. ... A contrary rule would elevate form over substance, allowing the State to enforce a search warrant if a device is protected by biometrics but not by a passcode. And it would offer those seeking to evade a lawful search warrant a path to do so.” The American Civil Liberties Union and Electronic Frontier Foundation support SCOTUS hearing the New Jersey case (see 2101080057).