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Michigan Criminal Law Blog

Do I Have to Share My Passwords with the Court?

We do everything we can to keep our passwords safe. Revealing passwords can put a great deal of sensitive information at risk.

But what if it’s law enforcement or the court asking for your password? Are government officials allowed to force you to give up your password if they are investigating you for a crime?

The simplest answer no, but things can get complicated. Several years ago, there was a case in Colorado in which a woman was charged with bank fraud and much of the case hinged on password protected information from her computer. The prosecution argued she must be forced to turn over the information, but her attorneys claimed that giving up encrypted information was a violation of her right to privacy and her right against self-incrimination protected by the Constitution.

At the time, there was little case law providing guidance on how to deal with such a situation. Law enforcement and the legal system continue to deal with constantly evolving technology and the law rarely moves as fast as technological developments.

Fifth Amendment Protections

Our Fifth Amendment rights protect us from being compelled to give testimonial evidence against ourselves. The court can compel defendants to give up “non-testimonial” evidence, including blood, DNA, handwriting samples and the like, but it cannot force a person to testify against him or herself.

The question in the Colorado case asked “does turning over a password that gives law enforcement access to information reveal the contents of your mind and incriminate you?”

A password is something you know, created by your mind, so it’s different than a physical item. Prosecutors in the case, however, claimed a password is no different than a key to a lock box or room. They pointed out that it wasn’t the password they wanted, but the evidence protected by the password, but the defense stood by its assertion that giving up the password gives law enforcement access to everything it protects.

The judge in the case eventually ruled that under the All Writs Act, the defendant had to produce the hard drive. She claimed to not remember the password, but a month later her ex-husband provided several potential passwords, one of which allowed access to the encrypted information.

Because it was not the defendant herself who provided the information, an appeal in the case would have done little to determine the Fifth Amendment issues in question. Since the case was resolved, several courts have upheld that passwords are generally protected under the Bill of Rights, but there are numerous exceptions.

What You Need to Know about Passwords and the Law

One of the most important things you can do is password protect your cell phone, computer, and other technology. If a police officer demands you reveal this information, ask to speak to an attorney. Law enforcement’s immediate access to your technological devices is prohibited by your Fourth Amendment rights that restricts unwarranted search and seizure, and in order to gain access to any device they need a search warrant.

If the police have a warrant, it is legal for them to seize your technological devices and search it. Under the Fifth Amendment, you are not legally required to turn over your passwords because it is considered self-incriminating testimony.

Since the original Colorado case, courts have accepted that telling the government your password is considered testimony, and you cannot be forced to share that information. There are exceptions, though, and it might be possible for the court to force you to decrypt a device under certain circumstances.

For more information about your rights regarding your electronic devices, check out this information from the Electronic Frontier Foundation.

Because technology is ever-changing and laws often take time to catch up with technological developments, issues involving technology and data can be legally complicated. If you’ve been asked to share information stored on a technological device or you are concerned you might be asked to turn over a password, it’s essential you speak to a legal expert.

For more information or to discuss your situation, contact Andrew W. Kowalkowski, PLLC at 248.974.9594.

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