The question before the court is one that has vexed other judges in recent years: can a person be forced to give up a password to decrypt their seized devices? Or, put another way, does the Fifth Amendment right against self-incrimination allow people to keep their encrypted devices locked? "I’m going to have to read these cases with a fine-tooth comb," Circuit Judge Charles Johnson said at a hearing this week, according to the Miami Herald. "I’m surprised by this case."
This issue is far from settled law. A former Philadelphia police officer has remained in custody for 18 months and counting for refusing to decrypt a seized hard drive that authorities believe contains child pornography. While the facts in that Pennsylvania case are different from the Florida case, the underlying issue remains the same.
"It differs in that the victim often wears a fur bikini, but is not otherwise an out-of-the-ordinary dispute over this issue in my opinion," Jennifer Granick, the director of civil liberties at the Stanford Center for Internet and Society, told Ars by e-mail.
On the federal level, in 2012, the 11th US Circuit Court of Appeals (which covers Florida) ruled that forced decryption did constitute a violation of a defendant’s Fifth Amendment rights. In 2013, a federal judge refused to force a Wisconsin child pornography suspect to decrypt his laptop. Overall, cases involving decryption are still relatively new and rare. The first known one only dates back to 2007.
In Florida state court, however, the issue of forced decryption previously came up in a 2016 case involving a man accused of taking "upskirt" photos in Sarasota. In State of Florida v. Stahl, a state appellate court ruled in favor of the government and found that the defendant did have to hand over his passcode to local authorities.
"This is uncharted territory," Brian Owsley, a law professor at the University of North Texas, who formerly served as a federal magistrate judge, told Ars. "It’s still sort of wide open enough where just about any judge who gets it gets to do whatever they want."
Together we fall
The new Miami case’s defendant is Hencha Voigt, a reality TV star. She is charged with extorting Julieanna Goddard, who goes by YesJulz online. The Herald described Goddard as a "South Beach socialite" who reportedly "parties with rappers and athletes."According to court records, which the Herald provided to Ars, Voigt contacted Goddard’s assistant, Imani Simmons, on July 20, 2016. Voigt told Simmons that someone was trying to sell sex videos of Goddard and even provided examples to prove that she was telling the truth. (Other filings indicate that Voigt herself had "compromising pictures/videos" published online without her consent prior to this incident.)
Voigt warned Simmons that someone would be contacting Goddard from a "trap phone" (burner phone) and further warned: "don’t threaten them, be super nice." While Voigt was texting Simmons, she was also calling and texting her friend (and co-defendant) Wesley Victor.
While Voigt only used an iPhone 6 (referred to as "Phone A"), complicating matters, Victor used three different phones, including an iPhone 6S ("Phone B"). The messages that the government wants are the iMessages between Voigt and Victor, which, as the government explains, "do not appear in telephone service provider records as anything other than generic data usage. Therefore, the only practical way of determining whether iMessages were sent or received from a particular phone is to actually examine the contents of the phone." The government seems to want these messages to further link Voigt and Victor.
Hours later on July 20, Victor asked Voigt for Goddard’s number, which Voigt provided. Victor then allegedly provided further examples of the racy material he possessed. The next day, Goddard asked how she could get the images and videos back or prevent their release. Victor asked for $18,000 in cash. Minutes later, Victor and Voigt were "apprehended together" in a car parked in Miami Beach—according to police records, Voigt even tried to hide the phone by sitting on it.
Weeks later, the Miami Beach police obtained a warrant to search Voigt’s iPhone and Victor’s three phones. Authorities were stymied by the two iPhones, as they were both passcode-protected. Both Voigt and Victor have been charged with extortion.
To add insult to injury, according to the Herald: "After their arrest, the videos made their way to the Internet anyway."
How foregone is it?
In a recent motion to compel, Micheal Filteau, an assistant state attorney, wrote that if Voigt does hand over her passcode, it will not provide testimony of what her phone contains."By producing the passcodes, the defendants would not be admitting that any incriminating information is actually contained within either Phone A or Phone B," he wrote. "Furthermore, the State will not make any use of either defendant's act of producing the passcodes to establish their ownership, control, usage, or their knowledge of any of the contents of the phones. The communication thus does not have testimonial significance."
Filteau went on to explain that even if the passcode is testimonial, the government can obtain it under the "foregone conclusion" exception to the Fifth Amendment privilege. That’s the legal doctrine that if the government already knows the testimony that will be obtained, then the Fifth Amendment cannot be a shield.
On Thursday, Goddard herself even weighed in on Twitter with her own legal analysis.
Law should be if u commit a crime with your cell phone,you lose your right 2privacy on that device. Authorities should have right to search
— Julz (@YesJulz) April 26, 2017
Dan Terzian, a Los Angeles-based attorney who has written about forced decryption in legal journals before, e-mailed Ars to say that he agreed with the prosecution.
"Florida is one of the few states where appellate courts have ruled on forced decryption," he wrote. "In Florida, the key case is in State of Florida v. Stahl, which concluded that forced decryption is constitutional. The government attorney's brief cites it extensively. Because of State v. Stahl, the court should conclude that the government can force the defendants to unlock their cellphones."
Voigt’s attorney, Kertch Conze, told Ars that he didn’t buy the government’s arguments. "This is a fishing expedition," he said. "They are not after information that they already knew or already had."
Conze’s April 24 response to the motion to compel details exactly why his client should not be forced to divulge her passcode, as it violates her Fifth Amendment privilege to not self-incriminate.
The fear among many civil libertarians and privacy activists is that by forcing someone to decrypt their entire device, they will give the government access to far more than the specifics of what it may seek. "We think that forcing people to decrypt incriminating information, by using something only they know, is testimonial every time and therefore violates the Fifth Amendment," Brett Max Kaufman, an attorney with the American Civil Liberties Union, told Ars.
For now, Voigt is out on bond. But will she be willing to be incarcerated if she refuses a court order to give up her password?
"We will cross this road if we get there," Conze, her attorney, said.
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