Courts are often accused of failing to adapt doctrine to the complexities of new technology. However, courts sometimes make the opposite mistake — stretching old doctrine too readily, when a new technology in fact presents no novel legal problem to solve. Recently, in State v. Andrews,1 the Supreme Court of New Jersey concluded that a defendant’s compelled disclosure of his iPhone passcodes did not merit Fifth Amendment privilege because the State’s knowledge of the passcodes was a “foregone conclusion,”2 despite the fact that such a disclosure amounted to the forced revelation of the “contents of [the defendant’s] own mind.”3 In stretching the so-called “act of production” doctrine to cover the compelled provision of iPhone passcodes — a step beyond the compelled unlocking of the device — the Andrews court inappropriately narrowed the privilege against self-incrimination, contravening judicial precedent and constitutional history alike.
After Quincy Lowery was arrested for suspected involvement in a Newark, New Jersey, drug-trafficking ring, he confessed to investigators that an officer in the Essex County Sheriff’s Office (ECSO) had helped him evade detection.4 Lowery claimed that the officer, defendant Robert Andrews — whom Lowery had met through a motorcycle club — warned him about a wiretap on Lowery’s phone and the potential placement of a GPS device on Lowery’s Jeep, among other things.5 As proof, Lowery showed officers text messages between himself and Andrews on his iPhone; however, Lowery had reset his phone thirty days earlier, eliminating most records of their prior conversations.6 In response, officers requested that Andrews surrender his two phones, an iPhone 5s and an iPhone 6 Plus, to the Internal Affairs Department of the ECSO.7 Andrews surrendered the phones and was subsequently indicted on various charges.8
Without Andrews’s passcodes, however, the State could not unlock his iPhones to search for the allegedly incriminating text messages and call records missing from Lowery’s phone.9 As such, the prosecution, armed with warrants for the phones’ contents,10 moved to compel Andrews to share his passcodes.11 In opposition, Andrews contended that the Fifth Amendment’s Self-Incrimination Clause and its New Jersey statutory and common law analogues prohibited the compelled disclosure of his passcodes.12 The trial court determined that compelled disclosure of the passcodes was not privileged under either the Fifth Amendment or New Jersey law, ordering an in camera disclosure of the passcodes and corresponding search of the iPhones.13 Andrews appealed.14
The Appellate Division affirmed the trial court’s order, concluding that “the compelled disclosure of the passcodes [was] not barred by the Fifth Amendment.”15 It began by explaining that the Fifth Amendment applies only when a compelled communication is “testimonial”: that is, it “explicitly or implicitly relate[s] a factual assertion or disclose[s] information.”16 Moreover, as the Supreme Court announced in Fisher v. United States,17 the production of information — though not an explicit statement or piece of oral testimony — can still be “testimonial” in nature: “‘[T]he act of produc[tion]’ itself may [implicitly] communicate incriminatory statements.”18 However, such an “act of production” is not protected by the Fifth Amendment when the information revealed by the compelled act is a “foregone conclusion” — in other words, when it “adds little or nothing to the sum total of the Government’s information.”19 Because the State had already established that Andrews owned, possessed, and controlled his iPhones, his act of producing their passcodes, while “testimonial,” fell under this “foregone conclusion” exception.20 Andrews again appealed.21
The Supreme Court of New Jersey affirmed.22 Writing for the court, Justice Solomon23 concluded that the compelled disclosure of the passcodes was not shielded by the Fifth Amendment privilege against self-incrimination or its analogues in New Jersey law.24 The court began by reiterating that “[t]estimonial communications may take any form, but must ‘imply assertions of fact.’”25 The court continued: the “act of produc[ing information]” — not just the information contained in the documents or files produced — can be testimonial “in its own right.”26 Because entering the passcodes implied assertions of fact (for example, that Andrews knew the passcodes and that the iPhones belonged to him), the court determined that the compelled disclosure of Andrews’s passcodes was a “testimonial act of production.”27 As such, it was presumptively barred by the Fifth Amendment privilege.28
Nonetheless, like the Appellate Division before it, the Supreme Court of New Jersey applied the foregone conclusion exception to Andrews’s “testimonial act of production,” holding that the Fifth Amendment privilege was overcome by the government’s knowledge of three key facts: the passcodes’ existence, their possession by the defendant, and their authenticity.29 In other words, any information revealed to the government by the passcodes’ production was a “foregone conclusion.”30 As such, the Fifth Amendment did not prevent the government from compelling Andrews to disclose the passcodes.31
Justice LaVecchia dissented.32 Conceding that the foregone conclusion exception has often been applied to cases involving compelled decryption, the dissent highlighted that courts have disagreed upon “what [that] compelled act produces” and in turn what “the government must establish in order for the foregone conclusion exception to apply.”33 Pointing out that the application of the foregone conclusion exception by the Court in Fisher does not “resemble its application to information on an encrypted device,”34 however, the dissent expressed concern about the extension of the act of production framework — “developed in the context of the compelled production of books, records, and physical documents” — to compelled decryption.35 Instead, the dissent advocated “adher[ing] to the Court’s bright line: the contents of one’s mind are not available for use by the government in its effort to prosecute an individual.”36
In classifying the defendant’s compelled disclosure of his passcodes as an “act of production” to which the foregone conclusion exception might apply, the Andrews court inappropriately narrowed the Fifth Amendment right against compelled self-incrimination. Faced with a case requiring a defendant to communicate his iPhone passcodes, the court employed an ill-fitting and rarely applied framework, jettisoning the fundamental Fifth Amendment principle of protecting a defendant’s individual, private thoughts. Ultimately, the Andrews decision contravened both judicial precedent and constitutional history.
First, the Andrews court’s reading of the Fifth Amendment contradicted precedent. To be protected by the Fifth Amendment, a communication must be “testimonial,” meaning it “impl[ies] assertions of fact”37 and expresses the “contents of [the defendant’s] own mind.”38 Conversely, when a communication is not testimonial — that is, when it does not reveal the “contents of [one’s] own mind”39 — it is unprotected.40 For example, the state can lawfully compel a defendant to furnish a handwriting, blood, or voice sample;41 to stand in a lineup;42 or to don particular clothing.43 The dividing line between “testimonial” and not is the state’s use of a defendant’s individual, private thoughts “to assist in his prosecution.”44 This distinction undergirds Justice Stevens’s oft-quoted dissent in Doe v. United States,45 which suggests that a defendant “may in some cases be forced to surrender a key to a strongbox containing incriminating documents,” but cannot “be compelled to reveal the combination to his wall safe.”46
In Fisher, the Court recognized that some compelled acts — as opposed to compelled statements — may nonetheless bear testimonial aspects, giving life to the Court’s so-called “act of production” doctrine.47 Using this doctrine, federal courts have extended the Fifth Amendment privilege to physical acts with “communicative aspect[s].”48 Responding to a subpoena for documents, the Fisher Court argued, carried with it the “tacit averments” of the defendant: namely, “the existence of the papers demanded and their possession or control by the [defendant].”49 Because these “tacit averments” were potentially incriminating, the Court reasoned, the act of producing the documents merited Fifth Amendment scrutiny.50
But the Fisher Court imposed an important limitation on the act of production doctrine. If the potentially incriminating “tacit averments” incidental to an “act of production” were already known to the government, the act — although testimonial — was not protected by the Fifth Amendment.51 This “foregone conclusion”52 exception has no analogue in cases involving “ordinary, oral testimony,” the Fifth Amendment’s traditional domain; the exception applies only to “acts of production.”53 Importantly, since Fisher, the Court has considered the foregone conclusion exception only twice, and solely in the context of the compelled production of documents in response to a subpoena.54 And in both cases, the Court refrained from applying the exception.55
Nonetheless, lower courts have repeatedly (and inconsistently) applied the act of production doctrine and the foregone conclusion exception in a variety of contexts — in particular, to the compelled decryption of encrypted electronic devices. In the vast landscape of compelled decryption cases, courts have disagreed over whether ordering a defendant to physically enter her passcode into a device56 or provide her biometric features (such as her fingerprints or face) to unlock a device57 is a testimonial “act of production”; if so, what incriminating evidence — or rather, “tacit averments” — the compelled testimonial act produces;58 and, in turn, what knowledge the government must demonstrate for the foregone conclusion exception to apply.59 But cases like Andrews, concerning the actual disclosure of a passcode — far more communication than act — are seemingly much less complicated.60 Yet the Andrews court continued down the “act of production” line of reasoning nonetheless.
In Andrews, the Supreme Court of New Jersey mischaracterized the communication at issue as an “act of production” with “communicative aspects,” as in Fisher, rather than a piece of compelled testimony anathematic to the Fifth Amendment. As Professor Laurent Sacharoff has argued, asking a defendant to state or write down her passcode “directly involve[s] testimony in its purest form”61: the government “cannot compel the password itself from a person’s head.”62 There is nothing “tacit” about such an averment at all. Andrews could have been resolved with the court’s admission that ordinary, oral testimony was at issue: “Communicating . . . a passcode requires facts contained within the holder’s mind — the numbers, letters, or symbols composing the passcode.”63
The Andrews court missed the fact that the act of production doctrine and its foregone conclusion exception have no relevance to the compelled disclosure of a passcode, regardless of whether they are applicable to other forms of compelled decryption. When a defendant is compelled to enter her passcode into her iPhone without disclosing it to the State, it is plausible she performs a physical act with “communicative aspect[s]” akin to the “act of production” in Fisher.64 But when a defendant communicates the passcode itself, as in Andrews, she expressly gives the State an additional piece of information. That piece of information has no equivalent in Fisher; after all, if the passcode were a foregone conclusion, the State would not need it to be revealed. And unlike the (previously existing, voluntarily created) documents sought in a typical act of production case, which enjoy no independent Fifth Amendment protection,65 the passcode must be compelled directly from the defendant’s head.
In mistakenly applying the act of production doctrine and the foregone conclusion exception to what is actually ordinary testimony, Andrews also broke with a historical understanding of the Fifth Amendment. Namely, the origins of the Fifth Amendment underscore the sanctity of the particular type of evidence at issue in Andrews. Federal courts often hearken back to the Fifth Amendment’s origins in the ecclesiastical courts and the Star Chamber, British courts of equity infamous for “putting the accused upon his oath and compelling him to answer questions designed to uncover uncharged offenses, without evidence from another source.”66 Importantly, one of the Framers’ main objections to the Star Chamber was the manner in which it eased the State’s burden of proof in criminal prosecutions, permitting the State to simply “call the accused as [its] first witness.”67 The Fifth Amendment thus codified the belief that the government, in choosing to bring a criminal case against an individual, is obligated to shoulder the entire load of producing evidence68 — leaving a defendant “privileged from producing the evidence [herself] but not from its production.”69
The fact, then, that the compelled communication in Andrews was of “minimal evidentiary significance”70 — a point repeatedly emphasized by the court as grounds for applying the foregone conclusion exception71 — is irrelevant. When it comes to compelled oral testimony, courts have long concluded that such communications are privileged if they “may ‘lead to incriminating evidence’ . . . even if the information itself is not inculpatory.”72 True, the foregone conclusion exception might be necessary to prevent defendants from employing the act of production doctrine to “introduce testimonial doors that block government access to their nontestimonial treasure.”73 However, it cannot be used to strip what is itself testimonial treasure — here, Andrews’s passcodes — of its privilege simply because that testimony is not facially incriminating or is of limited evidentiary value. Whatever the passcodes’ value, the State’s problem was that it could only solicit them from Andrews himself, requiring him to shoulder part of the evidence-gathering burden.
Despite the act of production doctrine’s inapplicability to the disclosure of Andrews’s iPhone passcodes — and its irreconcilability with the Fifth Amendment’s history — the Andrews court nonetheless categorized the disclosure as an “act of production,” permitting a subsequent “foregone conclusion” analysis to strip it of its Fifth Amendment privilege.74 In the end, Andrews is an easy case. But in demonstrating the clash between the act of production framework and the compelled revelation of an iPhone passcode, it ought to make judges think twice before applying the foregone conclusion exception outside the context of document production. As Justice Murphy declared in 1944: “The immediate and potential evils of compulsory self-disclosure transcend any difficulties that the exercise of the privilege may impose on society in the detection and prosecution of crime.”75 These evils also transcend the development of new technologies. Courts ought not to let them sneak into modern prosecutions via extension of the oft-questioned and rarely applied act of production doctrine.