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New Jersey v. Andrews is relatively new case law. Has it ever been successfully challenged at the district court level?

I'm aware of several cases where the state has seized a citizen's smartphone with a search warrant; then, citing State v. Andrews, has compelled said citizen to reveal their phone's password so that the phone's contents may be searched.

What I'm wondering is: have there been any cases where the State's motion to compel a password under Andrews has been successfully challenged?

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  • Whose district courts? The term is generally used to refer to trial courts in either the federal system or various state court systems. They cannot overturn a decision of an apex court of a state court system such as this case. SCOTUS could overrule the decision if it chose to do so, and the NJ Supreme Court could overrule its own decision. Other courts not subject to the NJ Supreme Court could disagree with it, but could not challenge this ruling.
    – ohwilleke
    May 11, 2023 at 20:27

1 Answer 1

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The question is ill framed, but I'll try to reframe it and answer it.

New Jersey v. Andrews is a decision of the New Jersey Supreme Court (its highest appellate court), which held that you do not have a 5th Amendment right to refuse to disclose a password that if disclosed might reveal incriminating password protected information. Andrews attempted to appeal this to the U.S. Supreme Court with the support of the American Civil Liberties Union and the Electronic Freedom Foundation. But, the U.S. Supreme Court denied Andrews' petition for certiorari (i.e. refused to take up the case, leaving it in force in New Jersey) on May 17, 2021.

As explained in an amicus brief to the U.S. Supreme Court in support of granting Andrews' Petition for Certiorari:

In an opinion dated, August 10, 2020, the New Jersey Supreme Court, based on Fisher v. United States, 425 U.S. 391 (1976), extended the “foregone conclusion” doctrine to cellphones and held that the Fifth Amendment to the United States Constitution does not protect an individual from being compelled to recall and truthfully disclose a password to his cellphone under circumstances where that disclosure may lead to the discovery of incriminating evidence. State v. Andrews, 234 A.3d 1254, 1274-75 (N.J. 2020).

The basic issue is that the 5th Amendment does not protect documents written by a potential criminal defendant from disclosure (and such a person can be forced to turn over those records or provide, for example, a physical key to a file cabinet to allow them to be obtained by authorities), but the 5th Amendment does protect a potential criminal defendant from having to testify in a way that would be self-incriminating. It isn't clear on which side of this divide a forced disclosure of a password lies.

The same amicus brief notes a law review article which stated that:

the Fifth Amendment law of compelled access to encrypted data as a “fundamental question bedeviling courts and scholars” and “that has split and confused the courts”

citing Laurent Sacharoff, "Unlocking the Fifth Amendment: Passwords and Encrypted Devices", 87 Fordham L. Rev. 203, 203, 207 (2018).

Neither the federal courts below the U.S. Supreme Court, nor the courts of another state can overturn a ruling of the New Jersey Supreme Court, and all state courts in the state of New Jersey are required to follow the precedents of the New Jersey Supreme Court including New Jersey v. Andrews.

There is an unresolved split of authority on this legal issue at the national level.

Three courts one step below the U.S. Supreme Court (including the New Jersey Supreme Court) have resolved it as New Jersey did, four courts one step below the U.S. Supreme Court have taken the opposite position, and at least one state (Florida) has an internal split of authority over the issue. Forty-five states (including Florida which is split at the intermediate appellate court level), the District of Columbia's local courts, and eleven intermediate federal appellate courts, however, have not yet definitively ruled on this emerging 5th Amendment interpretation issue.

Massachusetts reached the same conclusion as New Jersey did in Andrews. Commonwealth v. Gelfatt, 11 N.E.3d 605, 615 (Mass. 2014). So did the U.S. Court of Appeals for the 3rd Circuit. United States v. Apple MacPro Comput., 851 F.3d 238, 248 (3d Cir. 2017).

Indiana has held that the 5th Amendment privilege prohibits the government from demanding that someone disclose a password that if disclosed might reveal incriminating information. Seo v. State, 148 N.E.3d 952, 958 (Ind. 2020). So did Pennsylvania. Commonwealth v. Davis, 220 A.3d 534, 550 (Pa. 2019). Utah's Supreme Court held that the 5th Amendment prohibits forced disclosures of passwords in October of 2021. The U.S. Court of Appeals for the 11th Circuit also took this position. In re Grand Jury Subpoena Duces Tecum Dated Mar. 25, 2011, 670 F.3d 1335, 1341 (11th Cir. 2012).

The Florida Supreme Court had not addressed the issue (as of early 2021) and there was a split of authority over this issue in Florida's intermediate appellate courts at that time. Compare Pollard v. State, 287 So. 3d 649, 651 (Fla. App. 2019) and G.A.Q.L. v. State, 257 So. 3d 1058, 1062-63 (Fla. App. 2018) with State v. Stahl, 206 So. 3d 124, 136 (Fla. App. 2016).

What often happens when there is a split of authority between a small number of state supreme courts and intermediate federal appellate courts, like the one present here, but not all that many states and intermediate federal appellate courts (often called "circuits) have chimed in, is that the U.S. Supreme Court declines to resolve the split until more jurisdictions have considered the issue. Instead, the U.S. Supreme Court allows the law regarding that issue to "develop" and guide it in some future case in which the issue will be resolved.

If the lower appellate courts tend to clearly favor one resolution or the other, the U.S. Supreme Court will often take a case to ratify the clear majority view (although sometimes it contradicts that majority position instead). And, if the split remains fairly even after a large number of jurisdictions of taken a position, the U.S. Supreme Court may then step in an resolve the issue one way or the other.

But, there are many splits of authority on legal issues in U.S. federal law including constitutional law (probably hundreds) that have remained unresolved for a very long period of time, sometimes for decades, including some which are quite well developed.

Also, since this issue involves the interpretation of the U.S. Constitution in a very direct way, there is really nothing that Congress can do to resolve the split.

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    Almost certainly Congress can resolve the split, but only in one direction. They can write a law creating statutory protection against compelled disclosure of passwords. Now the courts can disagree on whether that is redundant with a constitutional right, but they can't compel disclosure. The only way this fails is if an inferior court is willing to give teeth to the 10th Amendment, something that is very unlikely in today's political climate, in which case Congress could only prevent federal agencies from demanding password disclosure.
    – Ben Voigt
    May 12, 2023 at 18:21
  • @BenVoigt Fair point.
    – ohwilleke
    May 12, 2023 at 18:40

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