Cell Phone Decryption

The Court of Appeals for the Armed Forces (CAAF) recently heard oral argument in a case that has the potential to affect every Soldier.  In United States v. Mitchell military criminal investigators compelled SGT Mitchel to unlock and decrypt his personal iPhone by entering his passcode.  The investigators then used the information from the phone to support their case against SGT Mitchell.

At the court-martial, the military judge suppressed the contents of SGT Mitchell’s cell phone because the military investigators had continued to question SGT Mitchell after he had requested an attorney, and that questioning led to SGT Mitchell decrypting the phone for the investigators.  The military judge found that the compelled entry of the passcode was testimonial, and that compelling SGT Mitchell to unlock and decrypt the phone was unconstitutional.

The military judge’s suppression ruling was affirmed by the Army Court of Criminal Appeals (ACCA).  After ACCA’s ruling, the Army’s Judge Advocate General certified three issues to CAAF:

I.  Whether the Fifth Amendment’s self-incrimination clause is violated when a suspect voluntarily unlocks his phone without giving his personal identification number to investigators.

II.  Whether the Edwards rule is violated when investigators ask a suspect, who has requested counsel and returned to his place of duty, to unlock his phone incident to a valid search authorization.

III.  Whether, assuming investigators violated appellant’s Fifth Amendment privilege or the Edwards rule, the military judge erred by suppressing the evidence.

The Fifth Amendment guarantees that “[n]o person shall be … compelled in any criminal case to be a witness against himself.”  However, “the Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence but applies only when the accused is compelled to make a testimonial communication that is incriminating.”  Fisher v. United States, 425 U.S. 391, 408 (1976).

The question for CAAF is whether requiring SGT Mitchel to unlock his phone and thereby decrypt the information on the phone violated his Fifth Amendment privilege against self-incrimination.  It is clear that by unlocking his phone, SGT Mitchell provided information to law enforcement that they may not have otherwise been able to obtain.