YOU HAVE THE RIGHT TO REMAIN SILENT. . . ABOUT YOUR COMPUTER PASSWORD
Although our practice focuses exclusively on personal injury matters, every now and again, an important ruling in a criminal case catches our eye. On November 20, 2019, the Pennsylvania Supreme Court, in a 4-3 decision authored by Justice Debra Todd, found that producing a computer password was “testimonial” in nature, and that the government’s request violated the defendant’s 5th Amendment right against selfincrimination. Justice Todd, writing for the majority, stated:
“Distilled to its essence, the revealing of a computer password is a verbal communication, not merely a physical act that would be nontestimonial in nature. There is no physical manifestation of a password, unlike a handwriting sample, blood draw or a voice exemplar. As a passcode is necessarily memorized, one cannot reveal a passcode without revealing the contents of one’s mind. Indeed, a password to a computer is, by its nature, intentionally personalized and so unique as to accomplish its intended purpose — keeping information contained therein confidential and insulated from discovery. . . . As such, the compelled production of the computer’s password demands the recall of the contents of the [defendant’s] mind, and the production carries with it the implied factual
assertions that will be used to incriminate him. Thus, we hold that compelling appellant to reveal a password to a computer is testimonial in nature.”
Commonwealth v. Davis, _______ A.3d ______, 56 MAP 2018 (11/20/19, Pa.).
The Davis case highlights legal principles which developed during times where there was no similar technology. Justice Todd’s thoughtful decision cuts through decades of case law and vagaries to establish a bright line in the Commonwealth of Pennsylvania.
Presumably, legal issues related to biometric security on electronic devices (fingerprints and face recognition) will ultimately be decided by the Pennsylvania Court. In fact, a review of case law from other jurisdictions on biometrics demonstrates somewhat of a split on whether compelling the use of a defendant’s fingerprint or facial recognition is also “testimonial”. Stay tuned.