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This Week in Technology + Press Freedom: Aug. 16, 2020

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  1. Policy

Here’s what the staff of the Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press is tracking this week.

New Jersey Supreme Court: Prosecutors can force criminal defendants to reveal cellphone passcodes

The New Jersey Supreme Court ruled last week that prosecutors can compel criminal defendants to disclose their cellphone passcodes to investigators.

In Monday’s 4-3 ruling in State v. Andrews, the court noted that the Fifth Amendment did not protect the defendant, Robert Andrews, from being forced to reveal passcodes to his cellphones. Andrews, a former officer with the sheriff’s office of Essex County, New Jersey, was indicted for official misconduct, hindering, and obstruction, based on allegations that he provided the target of a narcotics investigation with details of the investigation and advice on how to avoid criminal exposure.

State investigators obtained a warrant for Andrews’s two iPhones but were unable to search the devices because they didn’t have the passcodes. Investigators conferred with the New York Police Department’s Technical Services unit, the FBI, and a technology company, but could not access the devices. The state then moved to compel Andrews to disclose the passcodes to his phones.

Andrews opposed the motion and asserted that compelled disclosure of his passcodes violated the protections against self-incrimination afforded by New Jersey’s common law and statutes, as well as the Fifth Amendment.

A trial court rejected these arguments but limited access to Andrews’s cellphones to two applications, including a text messaging app Andrews used to communicate with the target of the narcotics investigation.

The trial court also ordered that the search be performed in the presence of a judge and Andrews’s defense counsel, with the court “review[ing] the PIN or passcode prior to its disclosure to the State.” An appeals court affirmed the trial court’s decision.

The New Jersey Supreme Court similarly rejected Andrews’s argument with respect to New Jersey law. And on the constitutional question, the state Supreme Court cited what is known as the “foregone conclusion” exception to the Fifth Amendment.

The Court noted that while the act of producing the passcodes is one presumptively protected by the Fifth Amendment, the testimonial value and constitutional protection could be overcome if the existence, possession, and authentication of the passcodes are “foregone conclusions.” The court said this was not a “fishing expedition” and that the exception applied.

Justice Jaynee LaVecchia, joined by Justices Barry T. Albin and Walter F. Timpone, dissented, writing that the “right of individuals to be free from the forced disclosure of the contents of their minds to assist law enforcement in a criminal investigation, until now, has been an inviolate principle of our law.”

While cases in which journalists rely on the Fifth Amendment are sparse, given the ruling’s potential impact on the government’s ability to access mobile devices, the case could have implications for journalists attempting to protect their sources and other sensitive information on their cellphones.

— Lyndsey Wajert

Quick Hits

Twitter said it will exclude tweets by state-controlled media organizations from recommendation systems, in effect no longer “amplifying” such tweets in search results and on timelines. The social media platform said it will also label accounts of government-linked media entities, as well as accounts of “key government officials” from China, Russia, and the U.S., among other countries.

The Wall Street Journal reported that a Virginia-based company with alleged ties to the U.S. defense and intelligence communities has embedded its tracking software in mobile phone apps. According to its marketing material, Anomaly Six LLC can draw location data from as many as 500 mobile applications through its software development kit that is embedded directly in some of the apps.

Amid reports that TikTok is seeking a deal to sell its U.S. operations to a U.S.-based company to avoid a potential White House ban, the company has also announced that it will ban “deepfake” videos on its platform, defined as “synthetic or manipulated content that misleads users by distorting the truth of events in a way that could cause harm.”

A federal judge in Illinois ordered CBS to produce video outtakes of interviews with plaintiffs who are suing police officers for civil rights violations, finding that Illinois’ state “shield law” was not “legally applicable” in a case involving federal claims.

The U.S. and European Union are in discussions to modify the so-called “Privacy Shield,” an agreement that sets forth how personal data is transferred from the EU to the U.S. for processing and storing, after the EU’s high court found that U.S. policies do not afford the privacy protections required by EU law.

As journalists attempt to report on the potential impact of COVID-19 on newly reopened schools, some school districts and state agencies are relying on the Health Insurance Portability and Accountability Act and educational privacy laws in refusing to disclose even basic numbers on coronavirus cases. This has happened despite federal guidance stating that such laws are not barriers to disclosure. For more information on HIPAA’s coverage, see the Reporters Committee’s guide.

Gif of the Week: Lyndsey Wajert, TPFP Legal Fellow, here to say that this is my last week at the Reporters Committee. It has been an honor and privilege to choose a gif for our readers every week. Thank you for reading!

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee Attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Fellow Linda Moon, and Legal Fellows Jordan Murov-Goodman and Lyndsey Wajert.