Court: Man charged with child porn can withhold his password

A man charged with child pornography does not have to give police his computer password and risk incriminating himself, the Pennsylvania Supreme Court ruled Wednesday on an issue that has divided courts across the country.

Defendant Joseph Davis has been in the Luzerne County Jail for four years while lawyers litigate the issue before trial.

The court’s 4-3 decision Wednesday acknowledged the difficulty that police face when building cases that involve sophisticated encryption and other complex technologies.

Still, the majority concluded that police cannot force people to “unlock the safe” to potentially incriminating evidence stored in their minds. The state Attorney General’s Office could ask the U.S. Supreme Court to consider the issue for the first time. The office did not immediately return a message seeking comment.

Other courts, including the U.S. appeals court in Philadelphia and the Massachusetts Supreme Judicial Court, have said defendants have to surrender passwords if it’s clear they know them.

The federal case in Philadelphia involved a police sergeant held in contempt for more than 18 months in a child pornography case in 2017. The Massachusetts case, decided this year, involved the phone password of a sex trafficking suspect.

But Pennsylvania’s highest court rejected their reasoning, concluding that the information — unlike physical evidence like a blood test — amounts to “testimony” that cannot be compelled.

“The crux of whether an act of production is testimonial is whether the government compels the defendant to use the ‘contents of his own mind’ in explicitly or implicitly communicating a fact,” Justice Debra Todd wrote. “Indeed, a password to a computer is, by its nature, intentionally personalized and so unique as to accomplish its intended purpose — keeping information contained therein confidential and insulated from discovery.”

Police said that Davis used file-sharing software to share two videos with investigators in 2015. He initially waived his Miranda rights — telling police he had prior convictions for pornography, was the sole user of the computer and had a 16-digit password — before refusing to say more without a lawyer.

A year earlier, investigators had seized one of his computers only to find the hard drive had been wiped.

Davis remains in jail on two counts of child pornography and counts of illegal use of a communications device, unable to post $200,000 bail.

“The Fifth Amendment, among other things, protects everyone from being compelled to reveal to the government anything which is privately in their own minds, and which the government wants to use to prosecute them,” said lawyer Peter Goldberger, who argued the case on behalf of Davis in May.