Password Protection and the Foregone Conclusion Exception

In Commonwealth v. Davis, No. 56 MAP 2018 (PA Supr. Ct. Nov. 20, 2019), the Pennsylvania Supreme Court, by a 4-3 vote, reversed the Superior Court’s and trial court’s determinations that compelling defendant to disclose his password (or passwords) to his computer, seized by warrant during an investigation of the appellant for distribution of child pornography and criminal use of a communications facility, would not violate the appellant’s protection against self-incrimination because of the “foregone conclusion” exception to the Fifth Amendment. In this month’s article, I review Davis and discuss its reasoning and what the foregone conclusion exception, in the age of computer passwords, tells us about both computers and the exception.

In Davis, the lower courts had reasoned that the foregone conclusion exception to the Fifth Amendment privilege against self-incrimination, as articulated by the U.S. Supreme Court in Fisher v. United States, 425 U.S. 391, 409 (1976), applied, because the exception held that “an act of production does not involve 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,’ (quoting Fisher, 425 U.S. at 409), and here, the government already knew that the computer seized in the appellant’s residence had been used by the appellant to disseminate child pornography, since: the computer had hard-wired internet access only; an internet address used to disseminate child pornography was tracked to the appellant’s residence; the computer at issue was TrueCrypt encrypted; the appellant was the only user; he was the only one who knew the password; and, that, by the appellant’s uncontested, fully Mirandized admissions that he and the agents “both knew what was on” the computer and that he would “die in prison before giving up the password,” the agents knew that child pornography was on the computer. Notwithstanding the lower courts’ reasoning, the Supreme Court majority held that the foregone conclusion exception did not apply to the instant matter because a “password manifests from one’s mind,” and so, by definition, the “foregone conclusion exception to the Fifth Amendment privilege against self-incrimination does not apply to the compelled disclosure of a computer password.” Justice Max Baer, writing on behalf of the three dissenting justices, argued that the facts in the matter, particularly the appellant’s admissions to the agents and the evidence gathered and seized by them, made the appellant’s production of the password a “foregone conclusion.”

The Majority Opinion