Is Forced Decryption Bound for the Supreme Court?

The law of digital evidence investigations faces a major issue in the application of the Fifth Amendment privilege against self-incrimination to unlocking phones. The lower court caselaw on this issue is incredibly unclear. The Utah Supreme Court’s ruling in State v. Valdez raises the question of whether it could be a good prospect for U.S. Supreme Court review.

In State v. Valdez, the defendant was charged with kidnapping and assault of his ex-girlfriend. The government had a warrant to search his phone for evidence related to their communications, but the phone was locked. The government asked Valdez for his password, and when he refused, they threatened to damage the phone to bypass the encryption. They were unable to access the phone. During the trial, the government wanted to introduce testimony that Valdez refused to unlock the phone as evidence of his guilt. The defense argued that Valdez had asserted his Fifth Amendment privilege, but the objection was overruled.

The Utah Supreme Court ruled that Valdez had a Fifth Amendment privilege not to provide his passcode, and as a result, the conviction could not stand. This raises the question of whether the U.S. Supreme Court might review the case. There is a split among state supreme courts on the compelled disclosure of passwords, with Pennsylvania and Utah courts upholding the privilege, while New Jersey courts have a different view. However, Valdez is a complicated case as it deals with compelled disclosure rather than compelled unlocking, and the assumptions framing the case might deter the Justices from taking it up.

In conclusion, Valdez presents an interesting legal issue with potential implications, but there are also complications that might affect the Supreme Court’s decision on whether to review the case.