The Fifth Amendment protects us from bearing witness against ourselves in criminal matters, but does that apply to computer passwords? A new legal back-and-forth between the Federal Bureau of Investigation and Google may set a precedent as to whether passwords are to be treated as self-incriminating testimony or as house keys to be handed over.
After serving multiple prison sentences, convicted pimp Dante Dears was placed under house arrest when police observed him continuing to run his prostitution ring from his smart phone. After confiscating the device, agents were unable to crack the " pattern lock " on Dears' phone, which runs Google's Android OS, and without his Gmail details, the FBI was out of options. They subpoenaed Google with an order to unlock Dears’ phone in mid-March.
However, when the warrant was refiled in court on March 26, FBI Special Agent Jonathan Cupina added a handwritten note: "No property was obtained as Google Legal refused to provide the requested information."
Google’s reason for refusal is still unknown.
The FBI's subpoena relies on what's called Third Party Doctrine, a precedent established by the Supreme Court in Katz v. United States in 1967. Under the doctrine, the court decided, "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties."
In this case, the third party, Google, is under no obligation to keep Dears' secrets, nor are they legally compelled to turn it over.
Paul Ohm, an associate law professor at the University of Colorado, told the Wall Street Journal that the FBI's decision to ask a third for Dears' password is "awfully new and aggressive."
The Journal reported that the FBI said it has resolved the issue but the agency would not provide further details.