The warrant that required his passcode seems like a clear Fifth Amendment violation.
> No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
He’s not being asked to testify against himself at trial, which is literally what “being a witness” means. The Fifth Amendment has already been stretched far beyond its text, to encompass lots of scenarios where a person is ordered to reveal potentially incriminating information. It’s being turned into something very different from what it was written as—a general purpose right not to be compelled to aid in your own prosecution.
If it was a corporate phone, and the company IT guy gave the police the password, would you call the IT guy a "witness?" Generally, you wouldn't. The password is not evidence--it doesn't matter to the case whether it's "123" or "ABC." Neither does knowledge of the password tend to prove innocence or guilt. For the same reason, forcing someone to disclose their password is not compelling them to be a witness.
Now, the IT guy might be a witness if, for example, there is a dispute about who owns a phone (say it was found at the scene of the crime), and the IT guy testifies that the company issued the accused that phone. That goes to the substance of the case--it links the crime scene to the accused. That is being a witness. In that circumstance, the Fifth Amendment should protect an accused from having to disclose that same information.
Why wouldn’t I call the IT guy a witness if he’s providing access to information relevant to your prosecution?
You would not call the IT guy a witness, because “providing access to information” is not “testifying.” A witness is someone who has facts relevant to the charges, and who testifies those facts to the jury based on her personal knowledge. The IT guy has no personal knowledge of the crime and won’t be called to tell the jury about it.
A good litmus test is: would you possibly tell this information to the jury? You may need to know the accused’s office number to search it. But that office number isn’t relevant information to the case in and of itself. It wouldn’t be a point you’d tell the jury. And the receptionist that tells you it isn’t a witness.
This doesn’t sound right. For example, what’s the difference between being compelled to give up your password and being compelled to reveal where you buried a murder victim?
For example, they're searching for child porn, and they find you're pirating TV shows... they can't prosecute for the pirate shows. The exception is usually only for something like murder/manslaughter.
IANAL, and this is only my understanding. The warrant itself may have been excessively broad or generic though.
What is the court going to do? Lock him up indefinitely?
Alright side stepping that barrel of worms, it still is the law until overturned.
Is forcing the revelation of a passcode more akin to speech, or is it more akin to providing a physical key?
The former is currently illegal, but being challenged in many jurisdictions. The latter is legal.
Thus the simultaneous push for Apple and others to provide back-doors. And large sums of money paid by the FBI to Israeli(?) IT firms to crack phones.
Strong crypto means the police can’t force their way in. But that doesn’t mean they should sprout new rights to force people to help.
Obviously you will be detained if you try and prevent lawful execution of a search warrant. But its kind of a false equivalency saw that not providing a passcode is the same.
From the Justice John Paul Stevens dissent from Justice John Paul Stevens (487 U.S. 201)
A defendant can be compelled to produce material evidence
that is incriminating. Fingerprints, blood samples, voice
exemplars, handwriting specimens, or other items of
physical evidence may be extracted from a defendant
against his will. But can he be compelled to use his
mind to assist the prosecution in convicting him of a
crime? I think not. He may in some cases be forced to
surrender a key to a strongbox containing incriminating
documents, but I do not believe he can be compelled to
reveal the combination to his wall safe — by word or
deed.
https://www.law.cornell.edu/supremecourt/text/487/201 https://caselaw.findlaw.com/us-supreme-court/530/27.html