You might think your phone password is protected by your right to remain silent, but the courts might not agree.
March 26, 2026
Original Paper
Less Fisher, More Doe: Non-Tetimonial Mental Content and a New Rule For Unlocking Digital Devices
SSRN · 6403340
The Takeaway
While many legal experts and citizens assume passwords stored in the mind are more protected than physical biometrics like fingerprints, this paper argues that unlocking a device is not a 'testimonial' act. This suggests the government can legally compel you to provide a password without violating your constitutional rights.
From the abstract
for additional comments and discussion. Thanks to participants at PLSC 2025 for their helpful questions and comments. Thanks for Henry Edwards for careful editing and research support. 2 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 34:000 doctrine. I argue that they are poorly suited to the unlocking scenario. Finally, I offer my own proposal. I argue, on the basis of a discussion of the nature of passwords as well as the purpose and precedential principles of the Fifth Amendment, that unlock