Keeping your passwords – the words and phrases you use to protect electronic financial and other personal information – secure is one of the most important things you can do in this day and age. Neglecting to lock down information with strong passwords can result in long-term security risks.
But what happens if you’re accused of a crime or you have information law enforcement wants access to and they ask for your passwords? Is it legal if you are forced to share your passwords by the police or the court?
For the most part, no, you cannot be forced to share your password. Of course, there are exceptions and laws regarding electronic security are ever-changing. Things are especially complicated when someone accused of a crime is asked to give up his or her password.
In most cases, defense attorneys argue that being forced to share a password is a violation of a defendant’s Constitutional rights. Under the Fifth Amendment, those accused of a crime are protected from having to give testimonial evidence that would be incriminatory. So while the court can order defendants to turn over handwriting samples and DNA, they cannot force someone to testify against themselves.
Defense attorneys argue passwords are something created by the defendant’s mind. It’s not a physical thing and therefore, the court cannot compel it to be shared.
On the other hand, prosecutors argue passwords are like keys to safes or lock boxes – and entirely up for grabs when it comes to evidence. And since it’s rarely the password itself they are after but the information protected by that password, it is simply a means to an end.
What to Do If Law Enforcement Demands Your Password
If you’re on trial and the prosecution asks for a password, you and your attorney will discuss how best to proceed.
But what if you’re asked for this information before you’re charged with a crime? Should you share your password if law enforcement demands you do so? And would not sharing a password be a crime?
If you find yourself in this situation, you should treat it as you would any other situation in which police want to speak to you about a crime. Ask to speak to an attorney before saying anything more to law enforcement. Their immediate access to your technological devices is prohibited by the Fourth Amendment, so without your consent, they’ll need a warrant to search your computer, phone, or any other device.
If law enforcement has a warrant by the time they ask for your password, it is legal for them to seize your technological, but you are not legally required to turn over your passwords. They can take the device, but not force you to share any information about that device.
For more information about your rights regarding your Fourth and Fifth Amendment rights when it comes to electronic devices, visit the Electronic Frontier Foundationthe Electronic Frontier Foundation.
Technology continues to evolve and it often takes the law some time to catch up to the advances. If you’ve been asked to share information or you’ve been ordered to turn over a device, you should contact an attorney immediately. For more information, contact David Lindsey.