PA: State’s seeking the passcode to unencrypt a computer hard drive violates the 5A

The state’s seeking the passcode to unencrypt a computer hard drive violates the Fifth Amendment. Commonwealth v. Davis, 2019 Pa. LEXIS 6463 (Nov. 20, 2019):

We appreciate the significant and ever-increasing difficulties faced by law enforcement in light of rapidly changing technology, including encryption, to obtain evidence. However, unlike the documentary requests under the foregone conclusion rationale, or demands for physical evidence such as blood, or handwriting or voice exemplars, information in one’s mind to “unlock the safe” to potentially incriminating information does not easily fall within this exception. Indeed, we conclude the compulsion of a password to a computer cannot fit within this exception.

Thus, we hold that the compelled recollection of Appellant’s password is testimonial in nature, and, consequently, privileged under the Fifth Amendment to the United States Constitution. Furthermore, until the United States Supreme Court holds otherwise, we construe the foregone conclusion rationale to be one of limited application, and, consistent with its teachings in other decisions, believe the exception to be inapplicable to compel the disclosure of a defendant’s password to assist the Commonwealth in gaining access to a computer.