Revisiting the Right to Remain Silent in the

Digital Age

Emily Johnson | May 2021

Screen Shot 2021-04-29 at 1.29.17 AM.png


n December 2, 2015, Syed Rizwan Farook and Tashfeen Malik opened fire at a holiday party in San Bernardino. Fourteen people lost their lives and 22 more were injured before the couple was killed in a shootout with police. The San Bernardino shooting was considered among the worst terrorist attacks since 9/11, yet the tragedy is often overshadowed by the ensuing dispute between Apple and the FBI regarding data security.


The FBI seized an iPhone belonging to Farook in the aftermath of the attack but was initially unsuccessful in gaining access to its contents. Apple complied with subpoenas and search warrants and offered engineers to advise the FBI, although the company drew the line when it feared a prominent threat to data security. In a letter to customers published early in 2016, Apple CEO Tim Cook suggests the FBI’s request to build a backdoor to the iPhone was too dangerous for Apple to undertake. If created, it is unreasonable to expect this technology would be confined to a single case and a single phone as the government proposed. Therefore, in the interest of protecting the data of tens of millions of Americans, Apple declined the FBI’s request, citing a commitment to the “very freedoms and liberty our government is meant to protect.” Only recently it was revealed that the FBI partnered with an Australian security firm called Azimuth Security to hack into the iPhone at the center of the San Bernardino case.


The Question of A Digital Right to Remain Silent


In the realm of privacy and data security, debates surrounding the very freedoms and liberty our government is meant to protect have only intensified since 2015. For years, lower courts have contended with the question of whether the constitutional freedom from self-incrimination, in other words the right to remain silent, extends to the digital realm. Fifth Amendment jurisprudence in this realm has specifically involved a significant degree of conflict among lower courts, and there has been much disagreement with regard to the issue at hand: whether law enforcement can force individuals to disclose their phone and computer passcodes. Thus, the Supreme Court should intervene to resolve this issue.


The pending case Andrews v. New Jersey provides an appropriate avenue to do so. 


Andrews v. New Jersey


Petitioner Robert Andrews filed a writ of certiorari in the Supreme Court early this January. During a narcotics investigation in 2015, the Essex County Prosecutor’s Office became aware that Andrews, a law enforcement officer, allegedly shared confidential information about the status of an investigation with the subject of that investigation. After seizing two of his iPhones, prosecutors obtained a court order compelling Andrews to disclose their passcodes. Because this was a valid warrant, there was no Fourth Amendment issue of an unlawful seizure. Nevertheless, Andrews refused to comply with the order, citing his Fifth Amendment right against self-incrimination.


In a 4-3 decision, the Supreme Court of New Jersey ruled that the freedom from self-incrimination does not protect an individual from being compelled to disclose one’s passcodes to law enforcement. According to this court, the passcodes were of “minimal testimonial value, and they could therefore be compelled because their existence, possession, and authentication were foregone conclusions.” Notably, this limits one’s freedom from self-incrimination, granting the government more expansive power during the criminal investigation process. The Pennsylvania Supreme Court, in the 2019 case Commonwealth v. Davis, reached the opposite conclusion, namely, that an individual cannot be compelled to disclose a passcode. This disagreement among lower courts undermines the aim of uniformity in the legal system, which is why the Supreme Court should grant certiorari to resolve this issue promptly.


Foregone Conclusions?


The “Foregone Conclusions” doctrine dates back to the 1976 case Fisher v. United States. Fisher concerned whether the compelled production of tax documents violated an individual’s Fifth Amendment privilege against self-incrimination. The Court ruled that the act of producing documents is separate from the documents sought, meaning production, when compelled, is itself a form of compelled testimonial evidence in court, with the potential to prompt Fifth Amendment protections from self-incrimination. Yet in Fisher, because the documents were created voluntarily rather than ordered by the government, the Court held that they could not be classified as constitutionally protected “compelled testimonial evidence.” 


Despite classifying the compelled production of evidence as protected testimony, in United States v. Hubbell the Court reasoned that an act of production is not a form of protected testimonial communication if the facts conveyed are already known to the government, such that the individual “adds little or nothing to the sum total of the government’s information.” Together, these cases imply the “Foregone Conclusions” exception to the Fifth Amendment. If the government can prove it already knows what the act of production will reveal, the government can compel production without violating the Fifth Amendment, as the contents of production would be “foregone conclusions.”


The Supreme Court has yet to apply this doctrine to the digital age. Is the production of documents akin to the production of a passcode? The act of producing documents necessarily reveals their contents, yet the act of producing a passcode determines whether the contents of an electronic device are accessible. The Court will have to decide if a passcode is of minimal testimonial value to the extent of constituting a “foregone conclusion” under the Fifth Amendment.


Contrary to the ruling of the Supreme Court of New Jersey, I disagree that passcodes are of minimal testimonial value. Justice Solomon, articulating the views of the majority, stated that “passcodes are a series of characters without independent evidentiary significance and are therefore of ‘minimal testimonial value’– their value is limited to communicating the knowledge of the passcodes.” In this view, passcodes have little connection to the information they might uncover. Rather, I contend that passcodes convey a significant amount of information. Passcodes are not merely numbers, they are the key to one’s digital existence, which is becoming increasingly sacred as more and more of our lives become digitized. Even if the government can prove that incriminating information exists behind a passcode, there is no limit to the government’s ability to find and utilize additional incriminating information unrelated to the case at hand. Thus, it should be within the scope of one’s freedom from self-incrimination to refuse to disclose a cell phone passcode.


In Conclusion

Andrews v. New Jersey has the potential to extend our Fifth Amendment privileges to the current technological paradigm. With this potential, the case may fundamentally shape the way law enforcement conducts investigations. With the rise of encryption products, the FBI has been unable to unlock over half of the devices it has attempted to unlock. A ruling in favor of the state would assist law enforcement agencies in overcoming this obstacle, yet uncertainty remains as to whether such a ruling would be constitutional. Thus, with a case now pending, the Supreme Court must set a national standard for criminal investigations and the rights of the accused, a standard built for the new digital world in which we find ourselves.

Emily Johnson is a junior at the University of Michigan studying Philosophy, Politics, and Economics. Her writing interests include Supreme Court news, legal history, and political theory. Emily is interested in attending law school after graduation, and, outside of MC, she enjoys cooking and yoga.