Apple and the FBI continue to battle over unlocking the San Bernardino gunman’s iPhone. A further question, though, separate from the immediate case, is certain to impact future cases: what if the gunman was still alive and available?

More broadly, what if the government wants access to your phone and you refuse to cooperate? If Apple maintains its current position, your cooperation (as the phone’s owner) may be the only means of accessing the phone’s contents. But what if you refuse?

Can the government force you to unlock your phone?



The answer largely hinges on how we interpret the US constitution’s fifth amendment. The amendment provides that “No person . . . shall be compelled in any criminal case to be a witness against himself.” This line is the famous “right to remain silent”. But, according to the courts, this right only protects communications that are “testimonial” – that is, communications or actions that somehow disclose the contents of your mind. This interpretation is why a defendant cannot plead the fifth when forced to provide a blood sample or a sample of handwriting; these results of compulsion do not count as testimonial.



Ironically, then, the government can force you to unlock your iPhone through fingerprint recognition, because fingerprints are not testimonial. But what if your phone has a passcode? Keying in the code is of course a physical act, but it is an act guided by knowledge. Because this act reveals the contents of your mind, it is arguably testimonial and is protected under the fifth amendment.



As a parallel, courts have used the analogy that the government can compel you to provide a physical key that unlocks a safe, but it cannot force you to divulge the safe’s combination.



There is, however, a complication: Under the “foregone conclusion” doctrine, the government can compel disclosure even of testimonial information if authorities are already aware of the “existence and location” of the information sought, according to the supreme court. In that special situation, the government isn’t forcing you to disclose new information; it is instead simply demanding that you surrender already-identified evidence. However, the courts created this doctrine years ago in cases where the information was not lodged in technologically sophisticated evidence but instead was embedded in, for example, bank records. Courts are now divided on how to apply this doctrine to new technology.



Some courts rule that the foregone conclusion doctrine does apply to an encrypted computer or smartphone, because the government knows of the location and existence of the device. Hence the device owner can be forced to unlock it. Other courts rule that the government needs more specific knowledge in order to invoke the foregone conclusion doctrine, such as knowing the location and existence of particular files on the encrypted device. Only then would the production of those files be a foregone conclusion – and so only then could the court compel the device’s passcode. Notice, though, that the idea of “location” is difficult in this setting: is it enough to know that a file resides somewhere on the device? Or in a particular sub-folder? Questions like these highlight the mismatch between new technology and a doctrine formulated decades ago.



The courts will need to wrestle with all of these issues. For now, the extent of fifth amendment protection for passcodes is far from clear. In debating this question, though, it is important to avoid a simplistic distinction between “security” (often the principle invoked in favor of compelled disclosure) and “privacy” (presumably the opposing principle).

The reason, of course, is that privacy provides security for citizens against government overreach. Indeed, it is crucial to remember that invoking the fifth amendment, “while sometimes a shelter to the guilty, is often a protection to the innocent”.

