Time for the high court to step in

Too often, technology outpaces the law, allowing for glaring legal holes that threaten people’s privacy and civil liberties. But a recent ruling by the Indiana Supreme Court on phone passcodes and selfincrimination should motivate the U.S. Supreme Court to address the topic, settling the matter once and for all.

Last month, the Indiana state Supreme Court ruled that the Fifth Amendment’s rule against self-incrimination allows people to refuse to unlock their phones for police.

This ruling echoed similar judgments in Pennsylvania, Wisconsin and Florida, which cited a 1988 U.S. Supreme Court decision that found “the expression of the contents of an individual’s mind falls squarely within the protection of the Fifth Amendment.” Passwords, these courts have decided, are content of the mind.

But other states — including Virginia and Massachusetts — as well as several federal courts, have decided otherwise, arguing that being forced to disclose a password is not a violation of the Fifth Amendment. The issue becomes even more complicated when you factor in biometric locks, such as fingerprints or face scans, which some courts argue are not protected because they are a physical feature, not mental information.

Privacy and civil liberties advocates fear that forcing people to unlock electronic devices will allow law enforcement to effectively fish for incriminating evidence, a concern that the Indiana Supreme Court also cited in its ruling. Law enforcement, of course, argues otherwise, claiming that accessing electronic devices can provide essential information about cases ranging from murder to child pornography.

With technology continuing to provide new security tools for users sure to further affect the issue, now is the time for the U.S. Supreme Court to step in. Between the varied lower court rulings and the importance of the issue on legal proceedings, the high court needs to determine the legality of forcing people to disclose digital passwords — whether they be passcodes or biometric locks.

What’s more, Congress could have addressed these concerns through legislation years ago. But partisanship and a sustained inability to tackle real issues left this critical Fifth Amendment issue on the sidelines.

Now, to ensure due process and protect the rule of law, it is up to the U.S. Supreme Court to settle the matter. Until that time, American citizens will be subjected to unacceptably imprecise and varying rulings on a critical constitutional question.