CLAIMING THE FIFTH
Superior Court orders defendant to relinquish his computer password
A Luzerne County man charged with disseminating child pornography has been ordered by the state Superior Court to turn over his 64-character computer password so that the state Attorney General’s office can recover potential evidence against him.
Attorneys for Joseph J. Davis, 62, of Edwardsville said they will appeal the decision issued Thursday to the state Supreme Court, arguing that it violates their client’s right against self-incrimination under the Fifth Amendment.
It is the first time this issue
has been raised in Pennsylvania’s appellate court system, and the case could have significant legal implications.
Davis, who has previously been convicted of child pornography charges, was arrested by agents from the AG’s office on Oct. 20, 2015, after an undercover investigation showed, they said, that he was sharing illegal images on a peer-to-peer filesharing network. The agents were able to trace the images back to an IP address at Davis’ home which was registered to him.
While agents saw the images Davis was allegedly sharing on the network, they were never able to access his computer to find what images might exist there.
When they asked him to provide the password, agents later testified, Davis said, “’Why would I give that to you? We both know what’s on there. It’s only going to hurt me. No [expletive] way I’m going to give it to you.’”
Prosecutors filed a motion to compel production of the password with Judge Tina Polachek Gartley of Luzerne County Common Pleas Court, who granted it.
Although there is no Pennsylvania case law to point to, the AG’s office referenced federal opinions, as well as decisions from Florida and Massachusetts, in which courts have found that forcing disclosure of a password is acceptable “when the record establishes that the information communicated by the compelled act … is already known by the government.”
It is called the Foregone Conclusion Doctrine, which “focuses on whether the government already knows the testimony or information that is implicit in the act of production compelled by the court.”
To fit the doctrine, prosecutors wrote, they must also prove the computer requires a password, that Davis was the sole possessor of that password, and that it is authentic.
This case, the AG’s office wrote, fits the definition.
But Davis’ attorneys disagreed with that assessment.
“They don’t know, for sure, what’s on the computer,” said Mark Singer, from the Luzerne County Public Defender’s Office, which represents Davis.
In his brief to the Superior Court, the defense argued that if it was a “foregone conclusion” as to what existed on the computer, the prosecution would be able to point out with specificity what the file is and where it is located on the computer.
Instead, the brief continued, at the earlier hearing on the issue, the commonwealth conceded that they really ‘do not know what’ the computer contains.”
Forcing Davis to give up the password, Mr. Singer said, is tantamount to forcing him to testify against himself.
Sara Rose, an attorney with the American Civil Liberties Union of Pennsylvania, said Davis’ case deals with an unsettled area of the law.
“The courts have said you can’t go on a fishing expedition, but if you know what you’re looking for, they’ll uphold turning over the password,” Ms. Rose said.
The Superior Court’s opinion, she said, failed to get into the details of what, specifically, the commonwealth knew existed on the computer.
Instead, Superior Court Judge Kate Ford Elliott wrote in her 15-page opinion that “there is a high probability that child pornography exists on said computer,” given that the AG’s investigation determined a computer from Davis’ IP address used a file-sharing network 25 times in 2015 to share child pornography; that the computer was seized from Davis’ residence, and that he implied to agents “the nefarious contents of the computer on numerous occasions.”
But Ms. Rose argues that forcing Davis to “divulge the contents of his own mind, which will result in the government finding incriminating information, is problematic.
“The ACLU believes the Fifth Amendment should protect people’s rights to not answer questions about the passwords on their devices.”
When they asked Joseph J. Davis to provide the password, agents later testified, Davis said, “'Why would I give that to you? We both know what’s on there. It’s only going to hurt me. No [expletive] way I’m going to give it to you.’”