Passwords as self-incrimination

In U.S. v. Scarfo, the court ruled that handing over a password is considered self-incrimination, and thus a court cannot compel one to turn over a password because of the 5^th amendment. How are we to deal with the issue of passwords? On one hand, it involves forcing someone to speak and give information which will probably incriminate them On the other hand, it is just part of a search and investigation process, which the government is allowed to do for a trial. Ultimately, for both theoretical legal reasons and for practical reasons, I believe this ruling is problematic and should be reversed.

The ruling referenced Doe II, in which it was decided that a person could be forced to ask a bank to turn over his records to the court, even if doing so would lead to his incrimination. This is because the information already exists, and the defendant is not being asked to provide previously non-existing information to the court. In a sense, the court is only doing a “search” of information about someone, and of course when there is a warrant a person does not need to consent to a search which may turn up incriminating information. In that respect, I think this line of logic makes sense.

However, the court then said that passwords leading to personal documents are different than the case of Doe II. Their argument is that while the information may already exist on the computer, the defendant is being asked to produce new information that could not have been searched previously—the password.

However, I do not think this is a good distinction to make, and I do not agree with its underlying logic. Ultimately, someone is going to be prosecuted for the contents of the laptop. While the password provides access to that information, it’s not as if someone is being punished for their password (i.e. the court rules their password is vulgar or contains pornography). Since the data which one is going to be punished for is already stored on the computer, “forgone conclusion,” it should be fair game for the court to use it, even if it requires compelling a person to turn over a password. Being forced to hand over a password is just like forcing a person to cooperate with a search – i.e. once authorities have a warrant, asking someone to show them all the places in the house where they are storing drugs.

I also think there are powerful practical reasons for making it legal for courts to demand passwords. Nowadays, data, communications, and evidence of all sorts are being stored on computers. All any criminal would have to do is password-protect their hard-drive, and then they would not have to worry about authorities finding out all of the information about their activity. Of course practical reasons alone cannot justify sacrificing civil liberties, but this is just an added concern, in addition to the legal reasons above.

However, maybe this is taking it too far and getting rid of too many privacies. Are there perhaps cases in which maybe people should get the right to not hand over their passwords? Do the circumstances of the case matter?