Urooba Abid, Paralegal, ACLU Speech, Privacy, and Technology Project

Our cell phones and other digital devices play a central role in our private lives, storing an unprecedented amount of our most personal information. While Carpenter v. United States, which the ACLU argued before the Supreme Court, applied Fourth Amendment protections to our cell phone location data and declared that old-world legal rules don’t automatically apply in the digital age, the role of Fifth Amendment protections in the digital age has left lower courts divided.

Late last week, the Illinois Supreme Court ruled in People v. Sneed that the Fifth Amendment does not preclude the State from compelling a criminal defendant to recall and enter a passcode to their encrypted cell phone.

Compelled entry constitutes a modern form of compelled testimony, which is categorically prohibited by the Fifth Amendment.

This decision by the Illinois Supreme Court is the latest in a growing number of cases concerning Fifth Amendment protections in the digital age and our right not to self-incriminate by unlocking our cellphones. While the high courts in Indiana and Pennsylvania have ruled that forcing defendants to unlock their phone violates their Fifth Amendment right against self-incrimination, others, including New Jersey and Massachusetts, and now Illinois, have ruled the opposite way.

In the Illinois Supreme Court case, during a criminal investigation for forgery charges against Keiron K. Sneed, the State obtained a warrant to search Mr. Sneed’s and his wife’s phones. After the State determined that the phones were locked and password protected, it filed a motion to compel Mr. Sneed to either provide or enter the passcode into his phone. The trial court denied the motion, determining that the compelled entry of a password to unlock and decrypt a digital device was testimonial, and would violate the defendant’s Fifth Amendment privilege against self-incrimination.

In the Illinois Supreme Court, we filed a friend-of-the-court brief with the ACLU of Illinois and several concerned organizations supporting the trial court’s decision. The brief argued that the State’s demand that Mr. Sneed enter his passcode to open his device necessarily compels him to make use of the contents of his mind by truthfully recalling and entering a memorized passcode — and the compelled use of one’s mind to assist the government is at the core of what Fifth Amendment privilege is meant to protect against. Compelled entry constitutes a modern form of compelled testimony, which is categorically prohibited by the Fifth Amendment.

Unfortunately, the court disagreed, holding that entering a passcode is akin to turning over business documents, and would reveal nothing more to the state than what it already knew: that the defendant knew the passcode.

While historically Fifth Amendment questions may have concerned combinations to physical property like safes or lock boxes, in the digital age, passwords to our personal devices unlock a much broader range of information, with thousands of files and personal data ranging from intimate communications, photographs and videos, location, and health information. That digital reality dramatically raises the stakes of how this issue is ultimately interpreted by the courts.

With its recent order reversing the trial court’s decision, the Illinois Supreme Court will force Illinoisans to face an unacceptable choice: either truthfully recall and disclose or enter information that will be used to incriminate them, lie about their inability to do so, or be held in contempt for failure to cooperate. The Fifth Amendment is intended to prevent suspects from ever having to face this “cruel trilemma,” which to the drafters of the Constitution recalled the dreaded Star Chamber and other early forms of pre-due process “justice.”

For these reasons, the ACLU has worked to ensure that lower courts across the country protect our Fifth Amendment rights and align this constitutional protection with modern technology. We have filed several friend-of-the-court briefs in state court cases, including in State of Utah v. Valdez, Seo v. State of Indiana, Commonwealth of Massachusetts v. Gelfgatt, Commonwealth of Pennsylvania v. Davis, State of Oregon v. Pittman, and State of Florida v. Garcia. We also filed a petition for certiorari to the U.S. Supreme Court in Andrews v. State of New Jersey. And years ago, we filed a brief in support of Apple’s challenge to FBI efforts to compel the company to help break into an iPhone.

In all of these cases, we’ve argued that our Fifth Amendment protection against self-incrimination extends to the digital age and prohibits law enforcement from forcing individuals to disclose their cell phone and computer passcodes.

This recent ruling in Illinois once again highlights the need for the Supreme Court to settle this critical question.

Date

Thursday, June 22, 2023 - 3:30pm

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An Illinois Supreme Court decision illustrates the judicial divide over our Fifth Amendment rights in the digital age.

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Nkechi Taifa, Attorney and Author

Once dismissed by many as impractical, the quest for reparations for the descendants of African people enslaved in the United States is now being embraced as a legitimate concept to be taken seriously. The remedy is not only being sought to address harms from the enslavement era, but also for lingering impacts which manifest today. The illegal kidnapping, cultural assault, and nearly 300 years of forced free labor, followed by 100 years of convict leased labor, Black codes, sharecropping, the peonage system, lynchings, mass murders, systemic racism, Jim Crow, gerrymandering, redlining, educational inequities, health disparities and mass incarceration, still reverberate within the collective genes of Black people in this country.

These harms were multi-faceted; thus, remedies must be as well. Indeed, reparations can be fashioned in as many ways as necessary to equitably address the countless manifestations of injustice emanating from America’s original sin.

Demonstrators with the Reparationist Collective gather at the Lincoln Memorial in Washington, D.C. to demand reparations from slavery and inequity

Protestors gather at the Lincoln Memorial in Washington, D.C. demanding reparations and the passing of H.R.40.

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Talk of reparations is no longer fringe, but now front and center. There are multitudes of faith organizations, sororities and fraternities, professional and social justice groups and civil and human rights organizations working to advance reparations. Support for federal reparations legislation is escalating under the leadership of Rep. Sheila Jackson Lee, who has generated more co-sponsors to H.R. 40 than ever in history. President Biden must take heed and expeditiously bring its objectives into existence via executive order.

Rep. Cori Bush has also recently introduced a comprehensive Reparations NOW resolution that addresses issues of systemic inequality. California passed legislation establishing a state-wide commission to study and develop reparations proposals, and has issued a comprehensive report for consideration. Cities across the country are establishing commissions and task forces, looking into abuses in their own backyards.

Leaders across the country are taking notice: The U.S. Conference of Mayors, the Players Coalition of professional athletes, coaches and owners across leagues, Amalgamated Bank, and many more have picked up the banner to endorse reparations. White allied groups are also committed to truth-telling. Ben and Jerry’s Ice Cream has issued a call to corporations to collectively use their power and privilege to reckon with the past.

The Virginia and Princeton theological seminaries are addressing reparations, and dioceses of the Episcopal Church in several jurisdictions have committed financial restitution as a moral acknowledgment of the church’s historic complicity. The financial backers of many of the country’s top universities were wealthy slave owners, an ugly truth that can no longer be pushed aside. Georgetown University, which stands today because of the sale of Black people owned by its founding Jesuits, has announced a $100 million commitment towards a foundation for descendants of those that saved the university from bankruptcy. Harvard University has dedicated $100 million to begin to atone for its extensive ties to enslavement and perpetuation of racial inequality. And in Virginia, a reparations bill was passed by the state legislature in 2021 that targets five schools with ties to slavery, including the University of Virginia and the College of William and Mary, all of whom owe their foundational success to the forced labor of enslaved human beings who helped build and run the institutions in their early days.

Caskets are opening across the country, revealing burgeoning evidence of racial atrocities, lynchings, and massacres. Past damages are being uncovered and redressed: In California, the state has acknowledged the governmental theft of the lucrative Black-owned Bruce’s Beach property, and passed legislation to return it to its rightful owners. There are current efforts for redress from Ocoee, Florida’s 1920 election day bloodbath, and the 1919 terrorism that ravaged Elaine, Arkansas’ Black community.

The land housing the unimaginable horrors of Atlanta’s Chattahoochee Brick Company, which perpetuated slavery through convict leasing, is being reclaimed by the people, and displaced families in Palm Springs, California are seeking compensation and atonement for the callous razing and eviction of an entire community.

In Tulsa, Oklahoma, renewed litigation is underway to achieve reparatory justice for the violent massacre of Black Wall Street. Recommendations from the commission formed in 2000 and charged with investigating the 1898 racial insurrection and coup d’état in Wilmington, North Carolina still await passage by the legislature. In 2019, remnants from the slave ship Clotilda were discovered, which in 1860 illegally transported Africans to Mobile Bay, Alabama — more than 50 years after the slave trade was abolished. Today, their descendants are exploring amends.

The role that federal, state, and local governments; corporations, industries, religious institutions, educational institutions, private estates, and other entities played in supporting the institution of slavery and its living legacies can no longer be ignored, dismissed, or swept under the rug. It’s a new day, with new energy and new possibilities. The fruit that we see today emanated from historic seeds that were planted and watered for generations. Reparations is no longer a stretch of the imagination or an unattainable goal but, very likely, a reality, and achievable in our lifetime.

Date

Monday, June 19, 2023 - 6:00am

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Demonstrators with the Reparationist Collective gather at the Lincoln Memorial in Washington, D.C. to demand reparations from slavery and inequity

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The fight for reparations is gaining ground across the country, and can no longer be ignored.

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