This op-ed was originally published in Deseret News on January 10, 2024.
Utah has once again proven itself as a state that truly values the privacy of its citizens. The latest victory comes out of the Utah Supreme Court, where judges ruled that law enforcement may not compel a person to disclose the password to unlock their cellphone — even in the presence of a valid search warrant.
This means that while police officers may be permitted to search your device with a warrant, you are not obligated to reveal the passcode to unlock it. The court justified its decision by citing the Fifth Amendment of the U.S. Constitution, which protects against self-incrimination. Utah’s constitution also guarantees the same protection in Article 1, Section 12.
The opinion of the court reveals that the state attempted to use the defendant’s silence — in this case, a refusal to disclose the passcode which only existed in his mind — to undermine his defense. It was ultimately decided that the state’s actions violated the rights of the defendant, thus vacating his conviction. There are several reasons why this is significant when it comes to due process and digital privacy.
In the opinion, which was authored by Justice Paige Petersen, the judges point out that had the officers obtained a court order demanding the defendant present an unlocked phone rather than simply demanding the passcode, the situation would have been considered differently. This is why biometric security features like facial recognition or fingerprint identification may make it easier for police to gain access to your devices. Lawmakers interested in digital privacy will want to consider addressing this potential loophole using biometrics.
Second, this ruling is consistent with the important work the Utah Legislature has done over the last several years to protect a person’s data from unconstitutional searches and seizures by law enforcement. Because of it, police are required to get a valid search warrant before accessing your data, whether it be stored on your personal device, your vehicle or an off-site server owned by third parties, such as Google, Meta, Verizon, etc. The Libertas Institute has played a key role in pushing for these reforms to protect Utahns’ digital privacy.
Victories like these are crucial in today’s debates around privacy in the digital age. Because the U.S. Supreme Court and Congress have been painfully slow in applying the Fourth and Fifth Amendment to the 21st century, government entities have been able to conduct illegal and unethical surveillance on Americans across the country. This leaves it up to the states to ensure that our constitutional rights aren’t left behind with the arrival of innovative technologies and new ways to communicate online.
Furthermore, the Court’s example couldn’t be more timely with the recent introduction of federal privacy legislation this past November — legislation which comes on the heels of previous efforts from several other states like Montana, Michigan, Missouri and California that have prioritized protecting Americans’ digital privacy from government surveillance. For these reasons, the Libertas Institute applauds the decision of the Utah Supreme Court for its willingness to stand up for individual liberties.
