Pleading the Fifth in the New Digital Age

Sometimes an unlikely source can be a catalyst for a major change in legal circles. While nothing has happened quite yet, a so-called “Sextortion” case may change the playing field for how well protected our information is on our phones.

The parties involved include Hencha Voigt, Wesley Victor, and Julieanna Goddard, aka YesJulz. Voigt and Victor were arrested in July 2016 on charges of extortion. They threatened to release sexually explicit photos and photos of Goddard if she did not pay them $18,000 in cash within 24 hours. When arrested, authorities confiscated four cell phones to be examined during the investigation.

The Issue:
The Fifth Amendment of the United States Constitution reads in part, “…No person…shall be compelled in any criminal case to be a witness against himself….” This is the section of the Constitution related to self-incrimination. Prosecutors against Voigt and Victor (who have plead not guilty) have asked for a judicial order to release phone passcodes in order to search the mobile devices as part of the ongoing investigation. Defense attorneys are arguing that the passcodes themselves equate to self incriminating testimony. A ruling is expected on May 3rd, 2017 and the impact may have a ripple effect on future legal decisions.

The Impact:
With the advent of social media and mobile devices, the stakes for legal search and seizure of property for evidence have gone up. Crucial evidence can be held on a phone, tablet, or other device that can be locked by use of a passcode – the incorrect entry of which could potentially completely lock out future attempts at data recovery. This issue was highlighted in the 2016 case of Apple vs. the FBI. Apple refused to allow the FBI into the phone of the “San Bernadino Shooter” and argued that the creation of a “backdoor” into the iOS would potentially compromise the privacy of their users. There is no doubt that the outcome of this case will help shape policy, public perception and legal maneuvering for years to come.