This is a court-martial case in which Army investigators compelled the defendant, Army Sergeant Edward Mitchell, to enter his password on his private iPhone so the phone could be searched for incriminating evidence (which was found). We joined with the National ACLU and the Electronic Frontier Foundation in filing an amicus brief, which argued that this violated Sgt. Mitchell’s Fifth Amendment privilege against self-incrimination because providing his password involved revealing the contents of his mind, and was therefore “testimonial,” as opposed to merely physical acts, such as providing a fingerprint, which the courts have held are non-testimonial and therefore not covered by the privilege. (The distinction comes from the language of the Fifth Amendment, which does not actually use the phrase “self-incrimination.” Rather, it provides that “No person . . . shall be compelled in any criminal case to be a witness against himself.” When the government seizes a person’s diary, or her bankbook, she is not compelled to be a witness against herself (at least that’s how the Supreme Court sees it). But when the government forces a person to tell it something, she is being compelled to testify, i.e., to be a witness.)
In August 2017, the U.S. Court of Appeals for the Armed Services -- the nation's highest military court -- ruled that the evidence obtained from Sgt. Mitchell's iPhone must be suppressed because compelling him to enter the password unlocking his phone violated his right against self-incrimination under the Fifth Amendment. Yay, Constitution!
The basis of the ruling was narrow. The court did not hold, as we had urged in our amicus brief, that entering the password would be "testimonial." Rather, it held that asking Sgt. Mitchell to enter his password was an improper interrogation when he was in custody and had asked for a lawyer, who was not present when he was "badgered" into unlocking his phone.
Nevertheless, the decision is in line with others showing that judges are alert to the dangers of cellphone searches, with their potential to expose all of a person's life to government investigators, and will require the government to dot its I's and cross its T's when it wants to conduct such a search.
