On October 24, 2018, the Florida Court of Appeal for the Fourth District ruled that the state could not compel the production of a defendant’s iPhone passcode and iTunes password because doing so would violate the Fifth Amendment’s protection against self-incrimination. The ruling in G.A.Q.L. v. State of Florida is encouraging for privacy advocates but may set up a showdown at the Florida Supreme Court, as it conflicts with a 2016 ruling from the Florida Court of Appeal for the Second District in which the court ruled that compelled production of a passcode did not violate the Fifth Amendment. The two pair of decisions highlights the variety of ways courts can choose to apply long-standing legal principles to new technology – and the resulting lack of predictability for practitioners.

Would compelled passcode production violate the Fifth Amendment?

The issue in G.A.Q.L. arose after G.A.Q.L., a minor, crashed his vehicle while driving under the influence, resulting in the death of one of his passengers. Upon searching the vehicle, police found an iPhone 7 alleged to belong to the minor. After obtaining a warrant to search the phone, the police sought an order compelling the minor to provide the iPhone passcode and the password for an associated iTunes account because the phone couldn’t be searched before an update was installed. The police wanted to search the phone because a surviving passenger stated she had communicated with G.A.Q.L. on the day of the crash via text messages and Snapchat. In response to the police’s motion to compel, the minor argued that compelled disclosure of the iPhone passcode and iTunes password would violate the Fifth Amendment. The trial court disagreed and ordered the production, so G.A.Q.L. petitioned the Florida Court of Appeal for a writ of certiorari to quash the trial court’s order.

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