Time to Face the (Hidden) Music

By: James Trusty

A Texas man named Guy Reffitt has found himself at the edge of the new legal frontier, a place where privacy rights and encrypted technology face aggressive prosecutors willing to push for their strongest criminal case. This Guy did not bring a lot of sympathy to the legal battle—he is alleged to have traveled from Wylie, Texas to the Capitol on January 6, 2021, with an AR-15 and a .40 caliber handgun, carrying the handgun on his waist at the Capitol. He also sported a helmet cam, and when it was seized a short time after the riot, the government found three video files – including two labeled “DC”—that had been deleted just after January 6.

The criminal complaint affidavit filed in Reffitt’s case is replete with additional negatives – it suggests he wore a tactical vest to the riot, that he threatened his family members if any of them turned him in or posted information about him, and that he belonged to an extremist group. In short, this Guy brings some baggage to the constitutional fight.

The interesting tech issue arose when the prosecutors determined the helmet cam’s missing videos might be retrievable from Mr. Reffitt’s seized, but locked, laptop computer. When the government demanded the information to unlock it,[1] Mr. Reffitt indicated he could not remember if there is a passcode or PIN for the computer, or what such codes would be. That led to Plan B – the laptop also will unlock based upon facial recognition–and the Assistant U.S. Attorneys moved the Court to compel Reffitt’s participation in unlocking the computer.

Not surprisingly, Reffitt’s attorney opposed such measures, and the logical bases for these objections are the 4^th Amendment’s prohibition against unreasonable searches and seizures, as well as the 5^th Amendment’s protection against compelled self-incrimination. The Court was seemingly quite comfortable with dismissing these arguments. The same probable cause that supported the initial seizing and attempted examination of the laptop was cited in support of this renewed intrusion. As to the self-incrimination claim, the government cited a series of cases that begin with Schmerber v. California, an iconic case that established the fact that “real evidence” observed on, or taken from, someone’s person (in that case, blood, but later expanded to include things like handwriting samples, voice exemplars and participating in line-ups) was not itself “testimonial,” and thus the 5^th Amendment offered no protection against the government’s obtaining of it. Whether within the framework of search warrants or grand jury subpoenas, other districts[2] have reached the same conclusion.

But, the 5^th Amendment challenge has led to contradictory results throughout the country, both in state and federal courts. A smattering of courts has indeed upheld the compelled process of obtaining facial recognition or passwords, but other judges have found that the unlocking was effectively testimonial and thus violative of the 5^th Amendment. For instance, a District Court Judge in the Northern District of California rejected a search warrant application in 2019, pointing out that compelled acts can be testimonial just like words.[3]

So where do things go from here? Well, in Mr. Reffitt’s case, it sounds like the “face time” has already occurred, and that raises an interesting phenomenon that often accompanies these type of pretrial issues – the vast majority of the judicial decisions will not be subject to any appeal, because the cases typically roll on to either guilty pleas or non-prosecution. It may take a while for federal circuits to be completely in conflict on this issue, with that “circuit split” being a well-travelled road to the Supreme Court’s entertaining of a case. In the short run, then, the question of compelled passwords or facial recognition typically will be subject to litigation without binding precedent, and thus the predictability of courts on this issue will be low. The big picture remains particularly murky – if courts routinely allow for de-encryption when there is probable cause to search a computer (not a particularly challenging concept in most cases where probable cause to arrest exists) will this privacy tool effectively be eliminated? If a steadfast defendant arrested under more sympathetic circumstances than Guy Reffitt refuses to have his face unlock a laptop, will a Judge actually lock up that privacy fan for contempt of court? Or will judges, or perhaps Justices, continue to assess changing technology in the context of cases like Schmerber, and conclude that this form of “facing the accuser” is as testimonial as saying “these are my locked files?” Until then, recognize that laptops are a prosecutor’s best friend, and they will not give up on that fruitful relationship very easily.

[1] This is not the first time that investigators have publicly struggled with accessing privatized devices. See https://www.ifrahlaw.com/crime-in-the-suites/fbi-recruits-apple-to-help-unlock-your-iphone/ and https://www.ifrahlaw.com/crime-in-the-suites/fbi-recruits-apple-to-help-unlock-your-iphone/

[2] District Court rulings from the Northern District of California, Colorado, and Vermont were cited in the government’s brief.

[3] Case 4:19-mj-70053-KAW Document 1 Filed 01/10/19