Arstechnica.com recently reported on a South Florida extortion case regarding sexually explicit text messages and videos. The case hinges on search warrants for data on an encrypted iPhone and carries important Fifth Amendment ramifications for phone privacy. On May 3, 2017, the Honorable Judge Charles Johnson, of Miami-Dade County, ruled on that the Constitution permits the compulsion of an individual to relinquish their phone passcode when presented with a duly executed search warrant without violating the Fifth Amendment. In his bench ruling, Judge Johnson asked: "[i]s giving up a password testimonial, and therefore in violation of the Fifth Amendment? Or is it more like being asked to give up a key to a safety deposit box? . . . For me, this is like turning over a key to a safety deposit box."
In this case, Miami resident and social medial personality, Hencha Voigt, was charged with allegedly extorting Julieanna Goddard. On July 20, 2016, Voight warned Goddard’s assistant that someone was trying to sell sexually related content of Goddard. While Voigt was texting Goddard’s assistant she was also in contact with co-defendant, Wesley Victor. Goddard asked Victor how she could retrieve the sexual images and videos or prevent their release. Victor responded by asking for $18,000 in cash. Later that day Victor and Voigt were found together and arrested.
The government was seeking the messages between Voigt and Victor in efforts to link the two in Goddard’s extortion. The Miami Beach police obtained a warrant to search Voigt’s and Victor’s phones; however, the two iPhone’s passcode safeguards blocked the department’s access. Voigt and Victor refused to provide their IPhone passwords, invoking the Fifth Amendment privilege against self-incrimination. Voight’s attorney, Kertch Conze, argued that the government is on a “fishing expedition” for information and that forceful decryption is always testimonial of the phones owner.
The case law in this area remains murky, and appeals are expected to follow. The Florida Supreme Court has yet to rule on this issue. However, most lawyers and scholars in the area agree that passwords may (or should) qualify for heightened Fifth Amendment protections over biometric fingerprint passwords (which are often treated as user names by the courts).