LAKELAND, Fla. — A Florida man suspected of voyeurism can be compelled to tell police his iPhone passcode so they can search it for incriminating photos, a Florida appellate court ruled last week.
Aaron Stahl was arrested after a woman who was shopping in a store saw him crouch down and extend an illuminated cellphone under her skirt, court records said.
The victim confronted him, and the man told her that he had dropped his cellphone. While yelling for assistance, the victim attempted to detain the man, but he was able to free himself and flee the store before assistance arrived.
Police were able to identify him using his car’s license plate number, and he was was arrested for third-degree voyeurism.
In a police interview, Stahl initially gave verbal consent to a search of his Apple iPhone 5, but he withdrew his consent before telling police his four-digit passcode.
Once police obtained a warrant for the phone, they were still unable to access the photos on the phone.
But without the four-digit passcode known only to the user even Apple cannot extract the data from the phone because the encryption key is tied to the passcode. After 10 failed attempts to enter the passcode, an iPhone will lock and likely erase its contents.
A Florida judge earlier denied the state’s motion to compel Stahl to give up his passcode, ruling that it would be tantamount to forcing him to testify against himself in violation of the Fifth Amendment.
But the Florida Court of Appeal’s Second District, in an opinion written by Judge Anthony Black, reversed that decision last week, ruling that the passcode is not related to any criminal photos or videos found on the phone.
“Providing the passcode does not ‘betray any knowledge [Stahl] may have about the circumstances of the offenses’ for which he is charged,” Black said, writing for the three-judge panel.
Black further said that he questioned the viability of any distinction between passcodes and use of touch ID fingerprints as technology advances.
“[W]e are not inclined to believe that the Fifth Amendment should provide greater protection to individuals who passcode protect their iPhones with letter and number combinations than to individuals who use their fingerprint as the passcode,” Black wrote.
“Compelling an individual to place his finger on the iPhone would not be a protected act; it would be an exhibition of a physical characteristic, the forced production of physical evidence, not unlike being compelled to provide a blood sample or provide a handwriting exemplar.”
Industry attorney Larry Walters of Walters Law Group told XBIZ today that the Stahl case is another example of how digital privacy rights are being chipped away.
“There is a conflict in the courts regarding whether the Fifth Amendment protects a citizen’s right to refuse to give up a password,” Walters said. “Some courts have concluded that enforcing such an obligation requires the citizen to reveal what’s in his or her mind. That seems to be obviously within the scope of what the Fifth Amendment was designed to protect.
"If we believe in the right against self- incrimination, how can we say the government should be able to force you to reveal ‘secret’ codes that only you know?"
Walters said that the appellate court “took a very narrow view of the importance of a cellphone passcode.”
“Basically, the court said that the state already has all of the information that the passcode will reveal, so forcing the defendant to reveal the passcode doesn’t add much to the state’s case,” Walters said. “So, the court decided it would be OK to force the defendant to reveal the passcode, since the information was a foregone conclusion.
“However, that’s not accurate since the state would not likely have any of the crucial evidence necessary to prove the voyeurism offense without the passcode.
Unfortunately, Walters said, in the law bad decisions can produce other bad decisions.
“Part of this court’s ruling was based on a prior case that said the government can force you to use your thumbprint to unlock a phone, since that’s different from providing the actual password. That’s more like providing a mugshot, blood sample or fingerprint, according to the prior decision.
“Based on that case, this court reasons that there should be no real difference in whether you unlock a phone using your fingerprint or a passcode. The court is right on that one — but both should be deemed ‘testimonial’ and protected by the Fifth Amendment.”