EFF Urges SCOTUS to Grant Cert to Defendant Who Won't Disclose Cellphone Passcode

The U.S. Supreme Court should grant the cert petition of criminal defendant Keiron Sneed to review the Illinois Supreme Court's judgement, reversing a lower court's denial of the state's motion to compel Sneed's to produce his cellphone passcode, the Electronic Frontier Foundation said in its Nov. 16 amicus brief (docket 23-5827). The order would require Sneed "to honestly recall and enter his memorized cellphone passcode to aid in his own prosecution," EFF said.

Sneed was charged in the lower court with two counts of forgery. The charges stemmed from two false paychecks that were payable to Sneed, which he endorsed then deposited via mobile deposit in his bank account. The police obtained a search warrant for Sneed’s cellphone but were unable to execute the warrant because the cellphone was passcode-protected and the defendant refused to provide the passcode. That’s when the state filed a motion to compel production of the passcode.

Despite the “modern technological context,” Sneed’s case “turns on one of the most fundamental protections” in the Constitution -- an accused person’s ability “to exercise his Fifth Amendment rights by refusing to become a witness against himself,” said EFF. The Illinois Supreme Court held that the Fifth Amendment privilege against self-incrimination doesn’t shield Sneed from being compelled to enter his passcode, it said.

Though compelling entry of the passcode would require Sneed to provide information unknown to the state to further his own prosecution, the court reasoned that the passcode could be compelled because the existence, possession and authentication of the passcode qualified for the “foregone conclusion” doctrine, said EFF. In so holding, the court “deepened a split of authority” between state supreme courts and federal appellate courts about whether and how the foregone conclusion analysis applies to compelled disclosure or entry of a passcode, it said. Only SCOTUS “can resolve this split,” it said.

The Illinois Supreme Court decision is “inconsistent” with a “long line” of SCOTUS precedents, “all of which prohibit the government from compelling a person to provide information that could be incriminating or lead to the discovery of incriminating evidence,” said EFF. Those precedents “recognize no distinction” between compelling someone to provide his birthdate “or the password to his phone or computer,” it said.