As the United States Supreme Court has now noted on several occasions, modern smartphones and other mobile devices implicate privacy concerns far beyond those raised by the search of a cigarette pack, a glove compartment, a wallet or a purse. Digital technology is unquestionably different.

One of the most notable distinguishing features of the modern mobile devices that have revolutionized the way we live, work and communicate, as articulated by our nation's highest court in Riley v. California, 134 S. Ct. 2473, 2489 (2014), is the immense storage capacity of these devices. As the United States Supreme Court has pointed out, a modern smartphone, for instance, collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video or photo, a text message, web history—all of which reveal much more, collectively, than any isolated record might if it was, standing alone, disclosed in the abstract. The United States Supreme Court put it best when writing, “[a] cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor's offices, political headquarters, intimate encounters, and other potentially revealing locales. The importance of safeguarding the contents of an individual's cell phone, then, is undeniable.” Carpenter v. United States, 138 S. Ct. 2206, 2218 (2018)

The Fifth Amendment to the United States Constitution and the related Act of Production Doctrine protect individuals from compelled self-incrimination. Under New Jersey law, the privilege against self-incrimination is the product of the common law, and embodied in the Rules of Evidence. The question of whether these fundamental individual rights can protect an individual from being compelled to provide mobile device passwords—the proverbial keys to what has been widely recognized as the most intimate details about a person—is testing courts across the country.

In In re Grand Jury Subpoena Duces Tecum, dated March 25, 2011, 670 F.3d 1335, 1346 (11th Cir. 2012), the United States Court of Appeals for the Eleventh Circuit held that the required production of decrypted hard drives in response to a grand jury subpoena would be tantamount to testimony by the defendant because it would require the use of the content of the defendant's mind and could not be fairly characterized as a physical act that would be non-testimonial in nature. Similarly, In United States v. Kirschner, 823 F. Supp. 2d 665 (E.D. Mich. 2010), the United States District Court for the Eastern District of Michigan, Southern Division, quashed a subpoena that required a defendant to provide the password to his computer in connection with a grand jury investigation targeting him.

Demonstrating the evolving nature of the law in this arena, in 2016, the District Court of Appeal of the State of Florida decided State v. Stahl, 206 So. 3d 124 (Fla. Dist. Ct. App. 2016), holding that requiring a defendant to produce his cellphone password did not communicate information that had testimonial significance, and therefore did not violate the Fifth Amendment to the United States Constitution. However, in 2018, a separate panel of the same Florida court quashed a trial court's order compelling the disclosure of two passwords in G.A.Q.L. v. State, No. 4D18-1811, 2018 WL 5291918 (Fla. Dist. Ct. App. Oct. 24, 2018). In that case, prosecutors were seeking to compel a cellphone password and an iTunes account password. The court stated that “[a]ll of these password cases, with the exception of Stahl, have determined that the compelled production of a passcode is more akin to revealing a combination than producing a key. This is so because revealing one's password requires more than just a physical act; instead, it probes into the contents of an individual's mind and therefore implicates the Fifth Amendment.” Id. at *2. The G.A.Q.L. court concluded that the compelled production of the cellphone password or the iTunes password would be testimonial and covered by the Fifth Amendment. Because of the inherent conflict between G.A.Q.L. and Stahl, the law in Florida is unsettled.

On Aug. 21, 2018, in Seo v. State, No. 29A05-1710-CR-2466, 2018 WL 4040295 (Ind. Ct. App. Aug. 21, 2018), the Court of Appeals of the State of Indiana held that the defendant's act of using her passcode to unlock and decrypt the contents of her phone was testimonial in nature. In so holding, the court stated, “when the State seeks to search a smartphone, it seeks to inquire into far more than 'old-fashioned' information physically contained on paper. In truth, nearly every smartphone contains data stored and arranged in such a way as to uniquely reveal the innermost thoughts of its owner.” Id. at 420.

Non-criminal cases in the regulatory context have also been decided in favor of preserving the privilege against self-incrimination. In SEC v. Huang, 2015 WL 5611644 (E.D. Pa., Sept. 23, 2015), the United States District Court for the Eastern District of Pennsylvania denied the regulator plaintiff's motion seeking to compel the defendants to disclose their personal passcodes for smartphones owned by their former employer. The court found that the defendants' confidential passcodes were personal in nature, and the defendants may properly invoke the Fifth Amendment privilege to avoid production of the passcodes.

On Oct. 16, 2018, in State v. Andrews, the New Jersey Appellate Division heard oral argument on whether a defendant could be compelled by police to produce his cellphone passwords. The defendant, an Essex County Sherriff's Officer, was accused of exposing an undercover narcotics investigation to his friend. The friend was the subject of the investigation. The friend testified that he and the defendant sent texts messages to each other relating to the investigation. The State obtained search warrants for the defendant's cellphones, but were unable to unlock the phones.

The Association of Criminal Defense Lawyers of New Jersey (ACDL-NJ) appeared as amicus curiae in the matter. Consistent with the majority of rulings of other courts across the country, the ACDL-NJ argued that requiring a defendant to provide the password to his cellphone constitutes testimonial conduct that invokes the protections against self-incrimination. The ACDL-NJ further argued that enhanced scrutiny should be placed upon the state's efforts to circumvent the right against self-incrimination where electronically stored information is involved. In analyzing matters involving electronically stored information, such as the unbounded and limitless contents of a mobile phone, great caution must be exercised. Consistent with the broader protections afforded to individual rights under New Jersey law, as opposed to federal law, New Jersey courts should emphasize the importance of safeguarding the contents of an individual's cellphone.

On Nov. 15, 2018, the Appellate Division, in a published opinion written by Judge Yannotti, rejected the defendant's arguments. Relying on Commonwealth v. Gelfgatt, 11 N.E.3d 605 (Mass. 2014) (a mortgage-fraud case that compelled defendant to enter his password for encryption software defendant has placed on various media storage devices), and United States v. Apple MacPro Computer, 851 F.3d 238 (3d Cir. 2017) (a child pornography case that compelled defendant to provide passwords for encrypted external hard drives), as well as the “foregone conclusion” doctrine, the Appellate Division concluded that the compelled disclosure of the passcodes of defendant's cellphone were not barred by the Fifth Amendment. The court refused to address the ACDL-NJ's argument that electronically stored information should be subjected to an enhanced degree of scrutiny, because the issue was not raised by the parties. Defense counsel will appeal to the New Jersey Supreme Court.

The proliferation of smartphones and other mobile devices has forced our courts to constantly reevaluate the application of the United States Constitution, state constitutions, and various other statutes and rules implicating individual privacy rights well beyond the brick-and-mortar contexts in which these cornerstone legal constructs were first devised. The amount of personal information held in a person's mobile device is overwhelming, and worthy of protection. It is nothing short of a treasure trove of testimonial material. The evolution of technology necessitates the parallel evolution of fundamental constitutional principles. New Jersey has long been a place where enhanced individual rights are recognized. It is time for New Jersey  to recapture its rightful place as a leader in defending those very fundamental individual rights that we hold dear.

Matthew S. Adams is a partner with Fox Rothschild, and co-chair of the firm's White Collar Criminal Defense and Regulatory Compliance practice group. Marissa Koblitz Kingman is an associate the practice group. They have frequently appeared as amicus curiae on behalf of the Association of Criminal Defense Lawyers of New Jersey to advance individual rights issues in the technology context.