On Nov. 20, in Commonwealth v. Davis, — A 3d. —, 56 MAP 2018, (Pa. 2019), the Pennsylvania Supreme Court held that compelling an individual to provide their password to an encrypted electronic device violates the Fifth Amendment. In this case of first impression, the government had moved to compel a defendant accused of distributing child pornography to provide the password to his encrypted computer, a device which itself had been lawfully seized. While the government’s request was through a pretrial motion, Davis’ holding is not limited to that context and will apply equally to grand jury practice.

In Davis, the court found that the act of producing the password was “testimonial” in nature and thus the government’s request violates the defendant’s Fifth Amendment right against self-incrimination. The court reviewed decades of U.S. Supreme Court precedent on the Fifth Amendment and distilled the caselaw to a few key points: