Phone SeizedCompare jurisdictionsMust I give them the passcode?

Must I give them the passcode?

Applies to: England & Wales · Scotland · Australia · United States. The law differs materially between jurisdictions this site covers — do not apply this page outside the one named here. Law also varies by state and territory in Australia — this page does not describe every state or territory. Law also varies by state, and by federal circuit, in the United States — this page does not describe every state or circuit.

Must I give them the passcode?

Must I give them the passcode? — one column per jurisdiction, each answer quoted to its source.
England & Wales	Scotland	Australia	United States
Must — refusing is an offence In England and Wales, a person to whom a section 49 notice under the Regulation of Investigatory Powers Act 2000 has been given is guilty of an offence under s.53(1) if they knowingly fail, in accordance with the notice, to make the disclosure required by virtue of the giving of the notice. Regulation of Investigatory Powers Act 2000, s.53(1) “A person to whom a section 49 notice has been given is guilty of an offence if he knowingly fails, in accordance with the notice, to make the disclosure required by virtue of the giving of the notice.” Read it at legislation.gov.ukquote checked 2026-09-08 Schedule 2 to the Regulation of Investigatory Powers Act 2000 says that, subject to the other provisions of that Schedule, a person has the appropriate permission in relation to any protected information if, and only if, written permission for the giving of section 49 notices in relation to that information has been granted — in England and Wales, by a Circuit judge. Regulation of Investigatory Powers Act 2000, Sch.2 para 1(1) “Subject to the following provisions of this Schedule, a person has the appropriate permission in relation to any protected information if, and only if, written permission for the giving of section 49 notices in relation to that information has been granted— in England and Wales, by a Circuit judge;— in Scotland, by a sheriff; or— in Northern Ireland, by a county court judge.” Read it at legislation.gov.ukquote checked 2026-10-02 Paragraph 4 of that Schedule applies to protected information falling within section 49(1)(a), (b) or (c) which is not information in the case of which paragraph 2 or 3 applies; paragraph 4(2) says that, subject to paragraph 6, where the statutory power was exercised, or is likely to be exercised, by the police, the police have the appropriate permission in relation to the protected information, without any grant of permission under paragraph 1. Regulation of Investigatory Powers Act 2000, Sch.2 para 4(1)(a) and (2) “This paragraph applies— in the case of protected information falling within section 49(1)(a), (b) or (c) which is not information in the case of which paragraph 2 or 3 applies—Subject to paragraph 6, where— the statutory power was exercised, or is likely to be exercised, by the police—the police—have the appropriate permission in relation to the protected information, without any grant of permission under paragraph 1.” Read it at legislation.gov.ukquote checked 2026-10-02 Paragraph 2 of that Schedule applies in the case of protected information falling within section 49(1)(a), (b) or (c) where the statutory power in question is one exercised, or to be exercised, in accordance with a warrant issued by the Secretary of State or a person holding judicial office, an authorisation under Part III of the Police Act 1997 (authorisation of otherwise unlawful action in respect of property), or a targeted equipment interference warrant issued under section 106 of the Investigatory Powers Act 2016 (powers of law enforcement chiefs to issue warrants to law enforcement officers); and, subject to sub-paragraphs (3) to (5) and paragraph 6(1), a person has the appropriate permission in relation to that protected information (without any grant of permission under paragraph 1) if the warrant or, as the case may be, the authorisation contained the relevant authority’s permission for the giving of section 49 notices in relation to protected information to be obtained under the warrant or authorisation, or, since the issue of the warrant or authorisation, written permission has been granted by the relevant authority for the giving of such notices in relation to protected information obtained under the warrant or authorisation. Paragraph 2(9) says that protected information that comes into a person’s possession by means of the exercise of any statutory power which is exercisable without a warrant, but is so exercisable in the course of, or in connection with, the exercise of another statutory power for which a warrant is required, shall not be taken, by reason only of the warrant required for the exercise of that other statutory power, to be information in the case of which paragraph 2 applies. Regulation of Investigatory Powers Act 2000, Sch.2 para 2(1), (2) and (9) “This paragraph applies in the case of protected information falling within section 49(1)(a), (b) or (c) where the statutory power in question is one exercised, or to be exercised, in accordance with— a warrant issued by the Secretary of State or a person holding judicial office;— an authorisation under Part III of the Police Act 1997 (authorisation of otherwise unlawful action in respect of property)— a targeted equipment interference warrant issued under section 106 of the Investigatory Powers Act 2016 (powers of law enforcement chiefs to issue warrants to law enforcement officers).—Subject to sub-paragraphs (3) to (5) and paragraph 6(1), a person has the appropriate permission in relation to that protected information (without any grant of permission under paragraph 1) if— the warrant or, as the case may be, the authorisation contained the relevant authority’s permission for the giving of section 49 notices in relation to protected information to be obtained under the warrant or authorisation; or— since the issue of the warrant or authorisation, written permission has been granted by the relevant authority for the giving of such notices in relation to protected information obtained under the warrant or authorisation.—Protected information that comes into a person’s possession by means of the exercise of any statutory power which— is exercisable without a warrant, but — is so exercisable in the course of, or in connection with, the exercise of another statutory power for which a warrant is required, shall not be taken, by reason only of the warrant required for the exercise of the power mentioned in paragraph (b), to be information in the case of which this paragraph applies.” Read it at legislation.gov.ukquote checked 2026-10-04 Paragraph 6(2) of that Schedule says that, subject to sub-paragraph (3), a constable does not by virtue of paragraph 1, 4 or 5 have the appropriate permission in relation to any protected information unless he is of or above the rank of superintendent, or permission to give a section 49 notice in relation to that information has been granted by a person holding the rank of superintendent, or any higher rank. Regulation of Investigatory Powers Act 2000, Sch.2 para 6(2) “Subject to sub-paragraph (3), a constable does not by virtue of paragraph 1, 4 or 5 have the appropriate permission in relation to any protected information unless— he is of or above the rank of superintendent; or— permission to give a section 49 notice in relation to that information has been granted by a person holding the rank of superintendent, or any higher rank.” Read it at legislation.gov.ukquote checked 2026-10-02 A notice under s.49 imposing a disclosure requirement in respect of any protected information must be given in writing or (if not in writing) must be given in a manner that produces a record of its having been given. Regulation of Investigatory Powers Act 2000, s.49(4)(a) “A notice under this section imposing a disclosure requirement in respect of any protected information— must be given in writing or (if not in writing) must be given in a manner that produces a record of its having been given” Read it at legislation.gov.ukquote checked 2026-10-01	Must — refusing is an offence In Scotland, a person to whom a section 49 notice under the Regulation of Investigatory Powers Act 2000 has been given is guilty of an offence under s.53(1) if they knowingly fail, in accordance with the notice, to make the disclosure required by virtue of the giving of the notice. Regulation of Investigatory Powers Act 2000, s.53(1) “A person to whom a section 49 notice has been given is guilty of an offence if he knowingly fails, in accordance with the notice, to make the disclosure required by virtue of the giving of the notice.” Read it at legislation.gov.ukquote checked 2026-09-08 Schedule 2 to the Regulation of Investigatory Powers Act 2000 says that, subject to the other provisions of that Schedule, a person has the appropriate permission in relation to any protected information if, and only if, written permission for the giving of section 49 notices in relation to that information has been granted — in Scotland, by a sheriff. Regulation of Investigatory Powers Act 2000, Sch.2 para 1(1) “Subject to the following provisions of this Schedule, a person has the appropriate permission in relation to any protected information if, and only if, written permission for the giving of section 49 notices in relation to that information has been granted— in England and Wales, by a Circuit judge;— in Scotland, by a sheriff; or— in Northern Ireland, by a county court judge.” Read it at legislation.gov.ukquote checked 2026-10-02 Paragraph 4 of that Schedule applies to protected information falling within section 49(1)(a), (b) or (c) which is not information in the case of which paragraph 2 or 3 applies; paragraph 4(2) says that, subject to paragraph 6, where the statutory power was exercised, or is likely to be exercised, by the police, the police have the appropriate permission in relation to the protected information, without any grant of permission under paragraph 1. Regulation of Investigatory Powers Act 2000, Sch.2 para 4(1)(a) and (2) “This paragraph applies— in the case of protected information falling within section 49(1)(a), (b) or (c) which is not information in the case of which paragraph 2 or 3 applies—Subject to paragraph 6, where— the statutory power was exercised, or is likely to be exercised, by the police—the police—have the appropriate permission in relation to the protected information, without any grant of permission under paragraph 1.” Read it at legislation.gov.ukquote checked 2026-10-02 Paragraph 2 of that Schedule applies in the case of protected information falling within section 49(1)(a), (b) or (c) where the statutory power in question is one exercised, or to be exercised, in accordance with a warrant issued by the Secretary of State or a person holding judicial office, an authorisation under Part III of the Police Act 1997 (authorisation of otherwise unlawful action in respect of property), or a targeted equipment interference warrant issued under section 106 of the Investigatory Powers Act 2016 (powers of law enforcement chiefs to issue warrants to law enforcement officers); and, subject to sub-paragraphs (3) to (5) and paragraph 6(1), a person has the appropriate permission in relation to that protected information (without any grant of permission under paragraph 1) if the warrant or, as the case may be, the authorisation contained the relevant authority’s permission for the giving of section 49 notices in relation to protected information to be obtained under the warrant or authorisation, or, since the issue of the warrant or authorisation, written permission has been granted by the relevant authority for the giving of such notices in relation to protected information obtained under the warrant or authorisation. Paragraph 2(9) says that protected information that comes into a person’s possession by means of the exercise of any statutory power which is exercisable without a warrant, but is so exercisable in the course of, or in connection with, the exercise of another statutory power for which a warrant is required, shall not be taken, by reason only of the warrant required for the exercise of that other statutory power, to be information in the case of which paragraph 2 applies. Regulation of Investigatory Powers Act 2000, Sch.2 para 2(1), (2) and (9) “This paragraph applies in the case of protected information falling within section 49(1)(a), (b) or (c) where the statutory power in question is one exercised, or to be exercised, in accordance with— a warrant issued by the Secretary of State or a person holding judicial office;— an authorisation under Part III of the Police Act 1997 (authorisation of otherwise unlawful action in respect of property)— a targeted equipment interference warrant issued under section 106 of the Investigatory Powers Act 2016 (powers of law enforcement chiefs to issue warrants to law enforcement officers).—Subject to sub-paragraphs (3) to (5) and paragraph 6(1), a person has the appropriate permission in relation to that protected information (without any grant of permission under paragraph 1) if— the warrant or, as the case may be, the authorisation contained the relevant authority’s permission for the giving of section 49 notices in relation to protected information to be obtained under the warrant or authorisation; or— since the issue of the warrant or authorisation, written permission has been granted by the relevant authority for the giving of such notices in relation to protected information obtained under the warrant or authorisation.—Protected information that comes into a person’s possession by means of the exercise of any statutory power which— is exercisable without a warrant, but — is so exercisable in the course of, or in connection with, the exercise of another statutory power for which a warrant is required, shall not be taken, by reason only of the warrant required for the exercise of the power mentioned in paragraph (b), to be information in the case of which this paragraph applies.” Read it at legislation.gov.ukquote checked 2026-10-04 Paragraph 6(2) of that Schedule says that, subject to sub-paragraph (3), a constable does not by virtue of paragraph 1, 4 or 5 have the appropriate permission in relation to any protected information unless he is of or above the rank of superintendent, or permission to give a section 49 notice in relation to that information has been granted by a person holding the rank of superintendent, or any higher rank. Regulation of Investigatory Powers Act 2000, Sch.2 para 6(2) “Subject to sub-paragraph (3), a constable does not by virtue of paragraph 1, 4 or 5 have the appropriate permission in relation to any protected information unless— he is of or above the rank of superintendent; or— permission to give a section 49 notice in relation to that information has been granted by a person holding the rank of superintendent, or any higher rank.” Read it at legislation.gov.ukquote checked 2026-10-02 A notice under s.49 imposing a disclosure requirement in respect of any protected information must be given in writing or (if not in writing) must be given in a manner that produces a record of its having been given. Regulation of Investigatory Powers Act 2000, s.49(4)(a) “A notice under this section imposing a disclosure requirement in respect of any protected information— must be given in writing or (if not in writing) must be given in a manner that produces a record of its having been given” Read it at legislation.gov.ukquote checked 2026-10-01	Must — refusing is an offence In Australia, under s.3LA(5) of the Crimes Act 1914 (Cth), a person commits an offence if the person is subject to an order under that section, is capable of complying with a requirement in the order, and omits to do an act, and the omission contravenes the requirement; the penalty stated is imprisonment for 5 years or 300 penalty units, or both. Crimes Act 1914 (Cth), s.3LA(5) — penalty tier one (Compilation No. 167, 27 Aug 2026) “A person commits an offence if:— the person is subject to an order under this section; and— the person is capable of complying with a requirement in the order; and— the person omits to do an act; and— the omission contravenes the requirement.—Penalty: Imprisonment for 5 years or 300 penalty units, or both.” Read it at legislation.gov.auquote checked 2026-09-08 Under s.3LA(6) of the Crimes Act 1914 (Cth), a person commits an offence if the person is subject to an order under that section, is capable of complying with a requirement in the order, and omits to do an act, and the omission contravenes the requirement, and the offence to which the relevant warrant relates is a serious offence or a serious terrorism offence; the penalty stated is imprisonment for 10 years or 600 penalty units, or both. Crimes Act 1914 (Cth), s.3LA(6) — offence elements and penalty tier two (Compilation No. 167, 27 Aug 2026) “A person commits an offence if:—the person is subject to an order under this section; and—the person is capable of complying with a requirement in the order; and—the person omits to do an act; and—the omission contravenes the requirement; and—the offence to which the relevant warrant relates is:—a serious offence; or—a serious terrorism offence.—Penalty: Imprisonment for 10 years or 600 penalty units, or both.” Read it at legislation.gov.auquote checked 2026-10-02 Under s.3LA(1) of the Crimes Act 1914 (Cth), a constable may apply to a magistrate for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow a constable to do one or more of a listed set of things, which include accessing data held in, or accessible from, a computer or data storage device, provided the computer or storage device is on warrant premises, was found in the course of an ordinary search or a frisk search authorised by a warrant under s.3E, has been moved under s.3K(2) and is at a place for examination or processing, or has been seized under that Division. Crimes Act 1914 (Cth), s.3LA(1) — order power (Compilation No. 167, 27 Aug 2026) “A constable may apply to a magistrate for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow a constable to do one or more of the following:—access data held in, or accessible from, a computer or data storage device that:—is on warrant premises; or—is found in the course of an ordinary search of a person, or a frisk search of a person, authorised by a warrant under section 3E; or—has been moved under subsection 3K(2) and is at a place for examination or processing; or—has been seized under this Division” Read it at legislation.gov.auquote checked 2026-10-01 In New South Wales, a specified person for a digital evidence access order must not, without reasonable excuse, fail to comply with a direction given, in accordance with the order, by the executing officer for the order; the maximum penalty is 100 penalty units or imprisonment for 5 years, or both. Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s.76AO(1) — failure to comply, offence and maximum penalty “A specified person for a digital evidence access order must not, without reasonable excuse—fail to comply with a direction given, in accordance with the order, by the executing officer for the order—Maximum penalty—100 penalty units or imprisonment for 5 years, or both.” Read it at legislation.nsw.gov.auquote checked 2026-09-09 In New South Wales, s.76AO(2) says that, without limiting subsection (1), it is not a reasonable excuse for a specified person for a digital evidence access order to fail to comply with the order or a requirement made in accordance with the order on the ground that complying with the order or the requirement would tend to incriminate the person or otherwise expose the person to a penalty. Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s.76AO(1)–(2) — failure to comply, and self-incrimination is not a reasonable excuse “A specified person for a digital evidence access order must not, without reasonable excuse—fail to comply with a direction given, in accordance with the order, by the executing officer for the order—Without limiting subsection (1), it is not a reasonable excuse for a specified person for a digital evidence access order to fail to comply with the order or a requirement made in accordance with the order on the ground that complying with the order or the requirement would tend to incriminate the person or otherwise expose the person to a penalty.” Read it at legislation.nsw.gov.auquote checked 2026-10-02 In Queensland, s.205A(1) of the Criminal Code says that a person who, without reasonable excuse, contravenes an order made under the Police Powers and Responsibilities Act 2000, section 154(1) or (2), 154A(2) or 178A(1), or an order made under the Crime and Corruption Act 2001, section 88A(1) or (2) or 88B(2), commits a crime, with a maximum penalty of 5 years imprisonment. Criminal Code (Qld), s.205A(1) — contravening a device information order, offence and penalty (current as at 1 June 2026) “A person who, without reasonable excuse, contravenes—an order made under the Police Powers and Responsibilities Act 2000, section 154(1) or (2), 154A(2) or 178A(1); or—an order made under the Crime and Corruption Act 2001, section 88A(1) or (2) or 88B(2);—commits a crime.—Maximum penalty—5 years imprisonment.” Read it at legislation.qld.gov.auquote checked 2026-10-02 In Queensland, s.205A(2) of the Criminal Code says that it is not a reasonable excuse to contravene an order made under the Police Powers and Responsibilities Act 2000, section 154(1) or (2), 154A(2) or 178A(1), or an order made under the Crime and Corruption Act 2001, section 88A(1) or (2) or 88B(2), on the basis that complying with the order might tend to incriminate the person or expose the person to a penalty. Criminal Code (Qld), s.205A(1)–(2) — the offence, and self-incrimination as no reasonable excuse (current as at 1 June 2026) “A person who, without reasonable excuse, contravenes—an order made under the Police Powers and Responsibilities Act 2000, section 154(1) or (2), 154A(2) or 178A(1); or—an order made under the Crime and Corruption Act 2001, section 88A(1) or (2) or 88B(2);—commits a crime.—It is not a reasonable excuse to contravene the order on the basis that complying with the order might tend to incriminate the person or expose the person to a penalty.” Read it at legislation.qld.gov.auquote checked 2026-10-02 In Victoria, under s.465AA(9) of the Crimes Act 1958, a person commits an offence if the person has relevant knowledge of the computer or data storage device or a computer network of which it forms or formed a part, or of measures applied to protect data held in, or accessible from, it; the person is informed by a police officer of the order and its terms and that it is an indictable offence punishable by imprisonment to fail to comply with the order; and the person fails to comply with the order without reasonable excuse. Crimes Act 1958 (Vic), s.465AA(9) — offence, Authorised Version No. 323 “A person commits an offence if—the person has relevant knowledge of—the computer or data storage device or a computer network of which the computer or data storage device forms or formed a part; or—measures applied to protect data held in, or accessible from, the computer or data storage device;—the person is informed by a police officer—of the order made under this section and of its terms; and—that it is an indictable offence punishable by imprisonment to fail to comply with the order; and—the person fails to comply with the order without reasonable excuse.” Read it at content.legislation.vic.gov.auquote checked 2026-10-02 In Victoria, s.465AA(6) of the Crimes Act 1958 says a person is not excused from complying with an order on the ground that complying with it may result in information being provided that might incriminate the person. Crimes Act 1958 (Vic), s.465AA(6) and (9)(c) — self-incrimination is no ground for non-compliance; the offence, Authorised Version No. 323 “A person is not excused from complying with an order on the ground that complying with it may result in information being provided that might incriminate the person.—A person commits an offence if—the person fails to comply with the order without reasonable excuse.” Read it at content.legislation.vic.gov.auquote checked 2026-10-02	Unsettled In the United States, in State v. Andrews (2020) the Supreme Court of New Jersey said that, although the United States Supreme Court had considered the application of the foregone conclusion exception only in the context of document production, courts in other jurisdictions had grappled with the applicability of the exception beyond that context, and many had considered whether the exception applies to compelled decryption or to the compelled production of passcodes and passwords, reaching divergent results; among other causes for that divergence, it said, was a dispute over how to adapt the foregone conclusion analysis from the document-production context, which involves the act of producing the document and the contents of the document, to the context of passcode production, which involves the act of producing the passcode that protects the contents of the electronic device. State v. Andrews, 234 A.3d 1254 (N.J. Aug. 10, 2020), opinion of the Court (Solomon, J.), Part III.B.3 (the court's description of other courts' decisions, not its holding) “Although the Supreme Court has considered the application of the foregone conclusion exception only in the context of document production, courts in other jurisdictions have grappled with the applicability of the exception beyond that context, and many have considered whether the exception applies to compelled decryption or to the compelled production of passcodes and passwords, reaching divergent results. Among other causes for that divergence is a dispute over how to adapt the foregone conclusion analysis from the document -production context, which—involves the act of producing the document and the contents of the document, to the context of passcode production, which involves the act of producing the passcode that protects the contents of the electronic device.” Read it at njcourts.govquote checked 2026-10-06 In Utah, in State v. Valdez (2023), the Supreme Court of Utah held that verbally providing a cell phone passcode to law enforcement is testimonial for Fifth Amendment purposes, that because the disclosure of a passcode involves traditional oral testimony the act-of-production analysis urged by the State does not apply, and that for the same reasons the foregone conclusion exception is inapplicable. State v. Valdez, 2023 UT 26, 552 P.3d 159 (Utah Dec. 14, 2023), ¶ 73, opinion of the Court (holding) “We hold that verbally providing a cell phone passcode to law enforcement is testimonial for Fifth Amendment purposes. Since the disclosure of a passcode involves traditional oral testimony, the act-of-production analysis urged by the State does not apply. And for the same reasons, the foregone conclusion exception is inapplicable.” Read it at utcourts.govquote checked 2026-10-06 In Utah, in Valdez, the court said that the questions about how the Fifth Amendment extends to law enforcement’s efforts to unlock seized devices and decrypt their contents had proven to be especially complex where law enforcement attempts to access the contents of a seized device by means that do not require the suspect to disclose the actual passcode, such as obtaining an order to compel the suspect to provide an unlocked device; it said that was not the situation before it, because law enforcement asked Valdez to verbally provide his passcode. State v. Valdez, 2023 UT 26 (Utah Dec. 14, 2023), ¶¶ 7–8, opinion of the Court (the court's description of what the case did not involve) “The prevalence of passcodes that encrypt the information on electronic devices—which are often seized by law enforcement while investigating criminal conduct—has raised important—questions about how the Fifth Amendment extends to law enforcement’s efforts to unlock these devices and decrypt the contents inside. These questions have proven to be especially complex where law enforcement attempts to access the contents of a seized device by means that do not require the suspect to disclose the actual passcode—like, for example, obtaining an order to compel the suspect to provide an unlocked device.—But that is not the situation we have before us. Here, law enforcement asked Valdez to verbally provide his passcode.” Read it at utcourts.govquote checked 2026-10-06 In Indiana, in Seo v. State (2020), the Supreme Court of Indiana held that the compelled production of an unlocked smartphone is testimonial and entitled to Fifth Amendment protection unless the State demonstrates that the foregone conclusion exception applies, and that in that case the State had failed to make that showing. Seo v. State, 148 N.E.3d 952 (Ind. June 23, 2020), slip op. at 5, opinion of the Court (holding) (CourtListener copy of the court's opinion) “We agree with Seo. The compelled production of an unlocked smartphone is testimonial and entitled to Fifth Amendment protection— unless the State demonstrates the foregone conclusion exception applies. Here, the State has failed to make that showing; and this case also highlights concerns with extending the limited exception to this context.” Read it at storage.courtlistener.comquote checked 2026-10-06 In Pennsylvania, in Commonwealth v. Davis (2019), the Supreme Court of Pennsylvania considered whether a defendant may be compelled to disclose a password to allow the Commonwealth access to the defendant’s lawfully-seized, but encrypted, computer; it found that such compulsion is violative of the Fifth Amendment to the United States Constitution’s prohibition against self-incrimination, and held that the compelled recollection of the appellant’s password is testimonial in nature and, consequently, privileged under the Fifth Amendment. Commonwealth v. Davis, 220 A.3d 534 (Pa. Nov. 20, 2019), opinion of the Court (Todd, J.), slip op. at 1 and 24 (holding; the password to a computer) “In this appeal by allowance, we consider an issue of first impression: Whether a defendant may be compelled to disclose a password to allow the Commonwealth access to the defendant’s lawfully-seized, but encrypted, computer. For the reasons that follow, we find that such compulsion is violative of the Fifth Amendment to the United States Constitution’s prohibition against self-incrimination. Thus, we reverse the order of the Superior Court.—Thus, we hold that the compelled recollection of Appellant’s password is testimonial in nature, and, consequently, privileged under the Fifth Amendment to the United States Constitution.” Read it at pacourts.usquote checked 2026-10-06 In New Jersey, in Andrews, the Supreme Court of New Jersey considered whether a court order requiring a criminal defendant to disclose the passcodes to his passcode-protected cellphones violates the Self-Incrimination Clause of the Fifth Amendment to the United States Constitution or New Jersey’s common law or statutory protections against self-incrimination; it concluded that it does not and affirmed the Appellate Division’s judgment. State v. Andrews, 234 A.3d 1254 (N.J. Aug. 10, 2020), opinion of the Court (Solomon, J.), opening paragraph (holding) “This appeal presents an issue of first impression to our Court -- whether a court order requiring a criminal defendant to disclose the passcodes to his passcode-protected cellphones violates the Self-Incrimination Clause of the Fifth Amendment to the United States Constitution or New Jersey’s common law or statutory protections against self-incrimination. We conclude that it does not and affirm the Appellate Division’s judgment.” Read it at njcourts.govquote checked 2026-10-06 In Illinois, in People v. Sneed (2023), the Supreme Court of Illinois concluded that compelling the act of producing the passcode to a cell phone by entering it into the phone is testimonial to the extent that performing the act of entering the passcode implicitly asserts that the person entering it has the ability to unlock the phone; that the foregone conclusion test is applicable in the context of the compelled production of cell phone passcodes; that in applying the test in this context the proper focus is on the passcode itself rather than on the contents of the phone; and that the foregone conclusion doctrine applies as an exception to the fifth amendment privilege in that case. It said that because the State’s motion to compel sought an order for the defendant to either enter the passcode or provide it to officers, compliance with the order would not require the defendant to disclose the passcode, and that it need not consider whether disclosing the passcode is sufficiently testimonial to be privileged where entering the passcode would not be. People v. Sneed, 2023 IL 127968, 230 N.E.3d 97 (Ill. June 15, 2023), ¶ 3, ¶ 115 and n.7 (attached to ¶ 113), opinion of the Court (holding) “We now affirm the judgment of the appellate court, albeit on different grounds.—We conclude as follows:—(2) compelling the act of producing the passcode to a cell phone by entering it into the phone is testimonial to the extent that performing the act of entering the passcode implicitly asserts that the person entering it has the ability to unlock the phone—(3) the foregone conclusion test is applicable in the context of the compelled production of cell phone passcodes; (4) in applying the foregone conclusion test in this context, the proper focus is on the passcode itself rather than on the contents of the phone; and (5) the foregone conclusion doctrine applies as an exception to the fifth amendment privilege in this case.—Because the State’s motion to compel sought an order for defendant to either enter the passcode or provide it to officers, compliance with the order would not require defendant to disclose the passcode, and this court need not consider whether disclosing the passcode is sufficiently testimonial to be privileged where entering the passcode would not be.” Read it at illinoiscourts.govquote checked 2026-10-06 In Massachusetts, in Commonwealth v. Jones (2019), the Supreme Judicial Court of Massachusetts concluded that when the Commonwealth seeks an order pursuant to its decision in Gelfgatt compelling a defendant to decrypt an electronic device by entering a password, art. 12 of the Massachusetts Declaration of Rights requires the Commonwealth to prove that the defendant knows the password beyond a reasonable doubt for the foregone conclusion exception to apply, and that the Commonwealth met its burden in that case. Commonwealth v. Jones, 481 Mass. 540, 117 N.E.3d 702 (Mass. Mar. 6, 2019), slip op. at 2-4, opinion of the Court (Kafker, J.) (holding under art. 12) (archived copy of the court’s slip opinion) “The central legal issue concerned whether compelling the defendant to enter the password to the—cell phone would violate his privilege against self- incrimination guaranteed by both the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights.—We conclude that when the Commonwealth seeks an order pursuant to our decision in Gelfgatt (Gelfgatt order or motion) compelling a defendant to decrypt an electronic device by entering a password, art. 12 requires the Commonwealth to prove that the defendant knows the password beyond a reasonable doubt for the foregone conclusion exception to apply. We also conclude that the Commonwealth met its burden in this case.” Read it at web.archive.orgquote checked 2026-10-06 In Oregon, in State v. Pittman (2021), the Supreme Court of Oregon, “faced with the circumstances and law as they presently exist,” construed Article I, section 12 of the Oregon Constitution to permit an order compelling a defendant to unlock a cell phone so long as the state (1) has a valid warrant authorizing it to seize and search the phone; (2) already knows the information that the act of unlocking the phone, by itself, would communicate; and (3) is prohibited from using the defendant’s act against the defendant, except to obtain access to the contents of the phone; it said those circumstances were not present in that case, and reversed. State v. Pittman, 367 Or. 498, 479 P.3d 1028 (Or. Jan. 28, 2021), opinion of the Court (Walters, C.J.), 367 Or. at 525 and 534 (the requirements and the disposition) “But, today, faced with the circumstances and law as they presently exist, we construe Article I, section 12, to permit an order compelling a defendant to unlock a cell phone so long as the state (1) has a valid warrant authoriz- ing it to seize and search the phone; (2) already knows the information that the act of unlocking the phone, by itself, would communicate; and (3) is prohibited from using defen- dant’s act against defendant, except to obtain access to the contents of the phone.—Although Article I, section 12, permits a trial court order compelling a defendant to unlock a cell phone in cer- tain circumstances, those circumstances are not present in this case. The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to that court for further proceedings.” Read it at ojd.contentdm.oclc.orgquote checked 2026-10-06 In Oregon, in Pittman, the court said that, because it concluded that the trial court’s order violated Article I, section 12 of the Oregon Constitution, it did not reach the defendant’s Fifth Amendment argument. State v. Pittman, 367 Or. 498, 479 P.3d 1028 (Or. Jan. 28, 2021), opinion of the Court (Walters, C.J.), 367 Or. at 508 (the constitutional ground) “We begin with the Oregon Constitution and, in particular, Article I, section 12.—Because we conclude that the trial court’s order violated that state constitutional provision, we do not reach defendant’s Fifth Amendment argument.” Read it at ojd.contentdm.oclc.orgquote checked 2026-10-06 In Utah, in Valdez (14 December 2023), the Supreme Court of Utah said that the United States Supreme Court had not yet addressed this specific question — whether an accused has a Fifth Amendment right not to disclose a passcode to an electronic device when law enforcement has a valid warrant to search the device, which it called a question of first impression for that court — so it analyzed existing Fifth Amendment precedent to determine how it should extend to this new factual context. State v. Valdez, 2023 UT 26 (Utah Dec. 14, 2023), ¶ 6, opinion of the Court (the court's statement as of its decision date) “Whether an accused has a Fifth Amendment right not to disclose a passcode to an electronic device when law enforcement has a valid warrant to search the device is a question of first impression for this court. The United States Supreme Court has not yet addressed this specific question, so we analyze existing Fifth Amendment precedent to determine how it should extend to this new factual context.” Read it at utcourts.govquote checked 2026-10-06 In the D.C. Circuit, in United States v. Brown (17 January 2025), the court said that if Schwartz had instead been compelled to disclose whether he could open the phone, and made to say yes or to verbally disclose the password, those answers unquestionably would be testimonial communications; this is a statement about a situation that case did not involve. United States v. Brown, No. 23-3074 (D.C. Cir. Jan. 17, 2025), slip op. 25–26 “If Schwartz had instead been compelled to disclose whether he could open the phone, and made to say yes or to verbally disclose the password, those answers unquestionably would be testimonial communications.” Read it at media.cadc.uscourts.govquote checked 2026-10-01

England & Wales
Must — refusing is an offence
In England and Wales, a person to whom a section 49 notice under the Regulation of Investigatory Powers Act 2000 has been given is guilty of an offence under s.53(1) if they knowingly fail, in accordance with the notice, to make the disclosure required by virtue of the giving of the notice.
Regulation of Investigatory Powers Act 2000, s.53(1)
“A person to whom a section 49 notice has been given is guilty of an offence if he knowingly fails, in accordance with the notice, to make the disclosure required by virtue of the giving of the notice.”
Read it at legislation.gov.ukquote checked 2026-09-08
- Schedule 2 to the Regulation of Investigatory Powers Act 2000 says that, subject to the other provisions of that Schedule, a person has the appropriate permission in relation to any protected information if, and only if, written permission for the giving of section 49 notices in relation to that information has been granted — in England and Wales, by a Circuit judge.
  Regulation of Investigatory Powers Act 2000, Sch.2 para 1(1)
  “Subject to the following provisions of this Schedule, a person has the appropriate permission in relation to any protected information if, and only if, written permission for the giving of section 49 notices in relation to that information has been granted— in England and Wales, by a Circuit judge;— in Scotland, by a sheriff; or— in Northern Ireland, by a county court judge.”
  Read it at legislation.gov.ukquote checked 2026-10-02
- Paragraph 4 of that Schedule applies to protected information falling within section 49(1)(a), (b) or (c) which is not information in the case of which paragraph 2 or 3 applies; paragraph 4(2) says that, subject to paragraph 6, where the statutory power was exercised, or is likely to be exercised, by the police, the police have the appropriate permission in relation to the protected information, without any grant of permission under paragraph 1.
  Regulation of Investigatory Powers Act 2000, Sch.2 para 4(1)(a) and (2)
  “This paragraph applies— in the case of protected information falling within section 49(1)(a), (b) or (c) which is not information in the case of which paragraph 2 or 3 applies—Subject to paragraph 6, where— the statutory power was exercised, or is likely to be exercised, by the police—the police—have the appropriate permission in relation to the protected information, without any grant of permission under paragraph 1.”
  Read it at legislation.gov.ukquote checked 2026-10-02
- Paragraph 2 of that Schedule applies in the case of protected information falling within section 49(1)(a), (b) or (c) where the statutory power in question is one exercised, or to be exercised, in accordance with a warrant issued by the Secretary of State or a person holding judicial office, an authorisation under Part III of the Police Act 1997 (authorisation of otherwise unlawful action in respect of property), or a targeted equipment interference warrant issued under section 106 of the Investigatory Powers Act 2016 (powers of law enforcement chiefs to issue warrants to law enforcement officers); and, subject to sub-paragraphs (3) to (5) and paragraph 6(1), a person has the appropriate permission in relation to that protected information (without any grant of permission under paragraph 1) if the warrant or, as the case may be, the authorisation contained the relevant authority’s permission for the giving of section 49 notices in relation to protected information to be obtained under the warrant or authorisation, or, since the issue of the warrant or authorisation, written permission has been granted by the relevant authority for the giving of such notices in relation to protected information obtained under the warrant or authorisation. Paragraph 2(9) says that protected information that comes into a person’s possession by means of the exercise of any statutory power which is exercisable without a warrant, but is so exercisable in the course of, or in connection with, the exercise of another statutory power for which a warrant is required, shall not be taken, by reason only of the warrant required for the exercise of that other statutory power, to be information in the case of which paragraph 2 applies.
  Regulation of Investigatory Powers Act 2000, Sch.2 para 2(1), (2) and (9)
  “This paragraph applies in the case of protected information falling within section 49(1)(a), (b) or (c) where the statutory power in question is one exercised, or to be exercised, in accordance with— a warrant issued by the Secretary of State or a person holding judicial office;— an authorisation under Part III of the Police Act 1997 (authorisation of otherwise unlawful action in respect of property)— a targeted equipment interference warrant issued under section 106 of the Investigatory Powers Act 2016 (powers of law enforcement chiefs to issue warrants to law enforcement officers).—Subject to sub-paragraphs (3) to (5) and paragraph 6(1), a person has the appropriate permission in relation to that protected information (without any grant of permission under paragraph 1) if— the warrant or, as the case may be, the authorisation contained the relevant authority’s permission for the giving of section 49 notices in relation to protected information to be obtained under the warrant or authorisation; or— since the issue of the warrant or authorisation, written permission has been granted by the relevant authority for the giving of such notices in relation to protected information obtained under the warrant or authorisation.—Protected information that comes into a person’s possession by means of the exercise of any statutory power which— is exercisable without a warrant, but — is so exercisable in the course of, or in connection with, the exercise of another statutory power for which a warrant is required, shall not be taken, by reason only of the warrant required for the exercise of the power mentioned in paragraph (b), to be information in the case of which this paragraph applies.”
  Read it at legislation.gov.ukquote checked 2026-10-04
- Paragraph 6(2) of that Schedule says that, subject to sub-paragraph (3), a constable does not by virtue of paragraph 1, 4 or 5 have the appropriate permission in relation to any protected information unless he is of or above the rank of superintendent, or permission to give a section 49 notice in relation to that information has been granted by a person holding the rank of superintendent, or any higher rank.
  Regulation of Investigatory Powers Act 2000, Sch.2 para 6(2)
  “Subject to sub-paragraph (3), a constable does not by virtue of paragraph 1, 4 or 5 have the appropriate permission in relation to any protected information unless— he is of or above the rank of superintendent; or— permission to give a section 49 notice in relation to that information has been granted by a person holding the rank of superintendent, or any higher rank.”
  Read it at legislation.gov.ukquote checked 2026-10-02
- A notice under s.49 imposing a disclosure requirement in respect of any protected information must be given in writing or (if not in writing) must be given in a manner that produces a record of its having been given.
  Regulation of Investigatory Powers Act 2000, s.49(4)(a)
  “A notice under this section imposing a disclosure requirement in respect of any protected information— must be given in writing or (if not in writing) must be given in a manner that produces a record of its having been given”
  Read it at legislation.gov.ukquote checked 2026-10-01
Scotland
Must — refusing is an offence
In Scotland, a person to whom a section 49 notice under the Regulation of Investigatory Powers Act 2000 has been given is guilty of an offence under s.53(1) if they knowingly fail, in accordance with the notice, to make the disclosure required by virtue of the giving of the notice.
Regulation of Investigatory Powers Act 2000, s.53(1)
“A person to whom a section 49 notice has been given is guilty of an offence if he knowingly fails, in accordance with the notice, to make the disclosure required by virtue of the giving of the notice.”
Read it at legislation.gov.ukquote checked 2026-09-08
- Schedule 2 to the Regulation of Investigatory Powers Act 2000 says that, subject to the other provisions of that Schedule, a person has the appropriate permission in relation to any protected information if, and only if, written permission for the giving of section 49 notices in relation to that information has been granted — in Scotland, by a sheriff.
  Regulation of Investigatory Powers Act 2000, Sch.2 para 1(1)
  “Subject to the following provisions of this Schedule, a person has the appropriate permission in relation to any protected information if, and only if, written permission for the giving of section 49 notices in relation to that information has been granted— in England and Wales, by a Circuit judge;— in Scotland, by a sheriff; or— in Northern Ireland, by a county court judge.”
  Read it at legislation.gov.ukquote checked 2026-10-02
- Paragraph 4 of that Schedule applies to protected information falling within section 49(1)(a), (b) or (c) which is not information in the case of which paragraph 2 or 3 applies; paragraph 4(2) says that, subject to paragraph 6, where the statutory power was exercised, or is likely to be exercised, by the police, the police have the appropriate permission in relation to the protected information, without any grant of permission under paragraph 1.
  Regulation of Investigatory Powers Act 2000, Sch.2 para 4(1)(a) and (2)
  “This paragraph applies— in the case of protected information falling within section 49(1)(a), (b) or (c) which is not information in the case of which paragraph 2 or 3 applies—Subject to paragraph 6, where— the statutory power was exercised, or is likely to be exercised, by the police—the police—have the appropriate permission in relation to the protected information, without any grant of permission under paragraph 1.”
  Read it at legislation.gov.ukquote checked 2026-10-02
- Paragraph 2 of that Schedule applies in the case of protected information falling within section 49(1)(a), (b) or (c) where the statutory power in question is one exercised, or to be exercised, in accordance with a warrant issued by the Secretary of State or a person holding judicial office, an authorisation under Part III of the Police Act 1997 (authorisation of otherwise unlawful action in respect of property), or a targeted equipment interference warrant issued under section 106 of the Investigatory Powers Act 2016 (powers of law enforcement chiefs to issue warrants to law enforcement officers); and, subject to sub-paragraphs (3) to (5) and paragraph 6(1), a person has the appropriate permission in relation to that protected information (without any grant of permission under paragraph 1) if the warrant or, as the case may be, the authorisation contained the relevant authority’s permission for the giving of section 49 notices in relation to protected information to be obtained under the warrant or authorisation, or, since the issue of the warrant or authorisation, written permission has been granted by the relevant authority for the giving of such notices in relation to protected information obtained under the warrant or authorisation. Paragraph 2(9) says that protected information that comes into a person’s possession by means of the exercise of any statutory power which is exercisable without a warrant, but is so exercisable in the course of, or in connection with, the exercise of another statutory power for which a warrant is required, shall not be taken, by reason only of the warrant required for the exercise of that other statutory power, to be information in the case of which paragraph 2 applies.
  Regulation of Investigatory Powers Act 2000, Sch.2 para 2(1), (2) and (9)
  “This paragraph applies in the case of protected information falling within section 49(1)(a), (b) or (c) where the statutory power in question is one exercised, or to be exercised, in accordance with— a warrant issued by the Secretary of State or a person holding judicial office;— an authorisation under Part III of the Police Act 1997 (authorisation of otherwise unlawful action in respect of property)— a targeted equipment interference warrant issued under section 106 of the Investigatory Powers Act 2016 (powers of law enforcement chiefs to issue warrants to law enforcement officers).—Subject to sub-paragraphs (3) to (5) and paragraph 6(1), a person has the appropriate permission in relation to that protected information (without any grant of permission under paragraph 1) if— the warrant or, as the case may be, the authorisation contained the relevant authority’s permission for the giving of section 49 notices in relation to protected information to be obtained under the warrant or authorisation; or— since the issue of the warrant or authorisation, written permission has been granted by the relevant authority for the giving of such notices in relation to protected information obtained under the warrant or authorisation.—Protected information that comes into a person’s possession by means of the exercise of any statutory power which— is exercisable without a warrant, but — is so exercisable in the course of, or in connection with, the exercise of another statutory power for which a warrant is required, shall not be taken, by reason only of the warrant required for the exercise of the power mentioned in paragraph (b), to be information in the case of which this paragraph applies.”
  Read it at legislation.gov.ukquote checked 2026-10-04
- Paragraph 6(2) of that Schedule says that, subject to sub-paragraph (3), a constable does not by virtue of paragraph 1, 4 or 5 have the appropriate permission in relation to any protected information unless he is of or above the rank of superintendent, or permission to give a section 49 notice in relation to that information has been granted by a person holding the rank of superintendent, or any higher rank.
  Regulation of Investigatory Powers Act 2000, Sch.2 para 6(2)
  “Subject to sub-paragraph (3), a constable does not by virtue of paragraph 1, 4 or 5 have the appropriate permission in relation to any protected information unless— he is of or above the rank of superintendent; or— permission to give a section 49 notice in relation to that information has been granted by a person holding the rank of superintendent, or any higher rank.”
  Read it at legislation.gov.ukquote checked 2026-10-02
- A notice under s.49 imposing a disclosure requirement in respect of any protected information must be given in writing or (if not in writing) must be given in a manner that produces a record of its having been given.
  Regulation of Investigatory Powers Act 2000, s.49(4)(a)
  “A notice under this section imposing a disclosure requirement in respect of any protected information— must be given in writing or (if not in writing) must be given in a manner that produces a record of its having been given”
  Read it at legislation.gov.ukquote checked 2026-10-01
Australia
Must — refusing is an offence
In Australia, under s.3LA(5) of the Crimes Act 1914 (Cth), a person commits an offence if the person is subject to an order under that section, is capable of complying with a requirement in the order, and omits to do an act, and the omission contravenes the requirement; the penalty stated is imprisonment for 5 years or 300 penalty units, or both.
Crimes Act 1914 (Cth), s.3LA(5) — penalty tier one (Compilation No. 167, 27 Aug 2026)
“A person commits an offence if:— the person is subject to an order under this section; and— the person is capable of complying with a requirement in the order; and— the person omits to do an act; and— the omission contravenes the requirement.—Penalty: Imprisonment for 5 years or 300 penalty units, or both.”
Read it at legislation.gov.auquote checked 2026-09-08
- Under s.3LA(6) of the Crimes Act 1914 (Cth), a person commits an offence if the person is subject to an order under that section, is capable of complying with a requirement in the order, and omits to do an act, and the omission contravenes the requirement, and the offence to which the relevant warrant relates is a serious offence or a serious terrorism offence; the penalty stated is imprisonment for 10 years or 600 penalty units, or both.
  Crimes Act 1914 (Cth), s.3LA(6) — offence elements and penalty tier two (Compilation No. 167, 27 Aug 2026)
  “A person commits an offence if:—the person is subject to an order under this section; and—the person is capable of complying with a requirement in the order; and—the person omits to do an act; and—the omission contravenes the requirement; and—the offence to which the relevant warrant relates is:—a serious offence; or—a serious terrorism offence.—Penalty: Imprisonment for 10 years or 600 penalty units, or both.”
  Read it at legislation.gov.auquote checked 2026-10-02
- Under s.3LA(1) of the Crimes Act 1914 (Cth), a constable may apply to a magistrate for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow a constable to do one or more of a listed set of things, which include accessing data held in, or accessible from, a computer or data storage device, provided the computer or storage device is on warrant premises, was found in the course of an ordinary search or a frisk search authorised by a warrant under s.3E, has been moved under s.3K(2) and is at a place for examination or processing, or has been seized under that Division.
  Crimes Act 1914 (Cth), s.3LA(1) — order power (Compilation No. 167, 27 Aug 2026)
  “A constable may apply to a magistrate for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow a constable to do one or more of the following:—access data held in, or accessible from, a computer or data storage device that:—is on warrant premises; or—is found in the course of an ordinary search of a person, or a frisk search of a person, authorised by a warrant under section 3E; or—has been moved under subsection 3K(2) and is at a place for examination or processing; or—has been seized under this Division”
  Read it at legislation.gov.auquote checked 2026-10-01
- In New South Wales, a specified person for a digital evidence access order must not, without reasonable excuse, fail to comply with a direction given, in accordance with the order, by the executing officer for the order; the maximum penalty is 100 penalty units or imprisonment for 5 years, or both.
  Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s.76AO(1) — failure to comply, offence and maximum penalty
  “A specified person for a digital evidence access order must not, without reasonable excuse—fail to comply with a direction given, in accordance with the order, by the executing officer for the order—Maximum penalty—100 penalty units or imprisonment for 5 years, or both.”
  Read it at legislation.nsw.gov.auquote checked 2026-09-09
- In New South Wales, s.76AO(2) says that, without limiting subsection (1), it is not a reasonable excuse for a specified person for a digital evidence access order to fail to comply with the order or a requirement made in accordance with the order on the ground that complying with the order or the requirement would tend to incriminate the person or otherwise expose the person to a penalty.
  Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s.76AO(1)–(2) — failure to comply, and self-incrimination is not a reasonable excuse
  “A specified person for a digital evidence access order must not, without reasonable excuse—fail to comply with a direction given, in accordance with the order, by the executing officer for the order—Without limiting subsection (1), it is not a reasonable excuse for a specified person for a digital evidence access order to fail to comply with the order or a requirement made in accordance with the order on the ground that complying with the order or the requirement would tend to incriminate the person or otherwise expose the person to a penalty.”
  Read it at legislation.nsw.gov.auquote checked 2026-10-02
- In Queensland, s.205A(1) of the Criminal Code says that a person who, without reasonable excuse, contravenes an order made under the Police Powers and Responsibilities Act 2000, section 154(1) or (2), 154A(2) or 178A(1), or an order made under the Crime and Corruption Act 2001, section 88A(1) or (2) or 88B(2), commits a crime, with a maximum penalty of 5 years imprisonment.
  Criminal Code (Qld), s.205A(1) — contravening a device information order, offence and penalty (current as at 1 June 2026)
  “A person who, without reasonable excuse, contravenes—an order made under the Police Powers and Responsibilities Act 2000, section 154(1) or (2), 154A(2) or 178A(1); or—an order made under the Crime and Corruption Act 2001, section 88A(1) or (2) or 88B(2);—commits a crime.—Maximum penalty—5 years imprisonment.”
  Read it at legislation.qld.gov.auquote checked 2026-10-02
- In Queensland, s.205A(2) of the Criminal Code says that it is not a reasonable excuse to contravene an order made under the Police Powers and Responsibilities Act 2000, section 154(1) or (2), 154A(2) or 178A(1), or an order made under the Crime and Corruption Act 2001, section 88A(1) or (2) or 88B(2), on the basis that complying with the order might tend to incriminate the person or expose the person to a penalty.
  Criminal Code (Qld), s.205A(1)–(2) — the offence, and self-incrimination as no reasonable excuse (current as at 1 June 2026)
  “A person who, without reasonable excuse, contravenes—an order made under the Police Powers and Responsibilities Act 2000, section 154(1) or (2), 154A(2) or 178A(1); or—an order made under the Crime and Corruption Act 2001, section 88A(1) or (2) or 88B(2);—commits a crime.—It is not a reasonable excuse to contravene the order on the basis that complying with the order might tend to incriminate the person or expose the person to a penalty.”
  Read it at legislation.qld.gov.auquote checked 2026-10-02
- In Victoria, under s.465AA(9) of the Crimes Act 1958, a person commits an offence if the person has relevant knowledge of the computer or data storage device or a computer network of which it forms or formed a part, or of measures applied to protect data held in, or accessible from, it; the person is informed by a police officer of the order and its terms and that it is an indictable offence punishable by imprisonment to fail to comply with the order; and the person fails to comply with the order without reasonable excuse.
  Crimes Act 1958 (Vic), s.465AA(9) — offence, Authorised Version No. 323
  “A person commits an offence if—the person has relevant knowledge of—the computer or data storage device or a computer network of which the computer or data storage device forms or formed a part; or—measures applied to protect data held in, or accessible from, the computer or data storage device;—the person is informed by a police officer—of the order made under this section and of its terms; and—that it is an indictable offence punishable by imprisonment to fail to comply with the order; and—the person fails to comply with the order without reasonable excuse.”
  Read it at content.legislation.vic.gov.auquote checked 2026-10-02
- In Victoria, s.465AA(6) of the Crimes Act 1958 says a person is not excused from complying with an order on the ground that complying with it may result in information being provided that might incriminate the person.
  Crimes Act 1958 (Vic), s.465AA(6) and (9)(c) — self-incrimination is no ground for non-compliance; the offence, Authorised Version No. 323
  “A person is not excused from complying with an order on the ground that complying with it may result in information being provided that might incriminate the person.—A person commits an offence if—the person fails to comply with the order without reasonable excuse.”
  Read it at content.legislation.vic.gov.auquote checked 2026-10-02
United States
Unsettled
In the United States, in State v. Andrews (2020) the Supreme Court of New Jersey said that, although the United States Supreme Court had considered the application of the foregone conclusion exception only in the context of document production, courts in other jurisdictions had grappled with the applicability of the exception beyond that context, and many had considered whether the exception applies to compelled decryption or to the compelled production of passcodes and passwords, reaching divergent results; among other causes for that divergence, it said, was a dispute over how to adapt the foregone conclusion analysis from the document-production context, which involves the act of producing the document and the contents of the document, to the context of passcode production, which involves the act of producing the passcode that protects the contents of the electronic device.
State v. Andrews, 234 A.3d 1254 (N.J. Aug. 10, 2020), opinion of the Court (Solomon, J.), Part III.B.3 (the court's description of other courts' decisions, not its holding)
“Although the Supreme Court has considered the application of the foregone conclusion exception only in the context of document production, courts in other jurisdictions have grappled with the applicability of the exception beyond that context, and many have considered whether the exception applies to compelled decryption or to the compelled production of passcodes and passwords, reaching divergent results. Among other causes for that divergence is a dispute over how to adapt the foregone conclusion analysis from the document -production context, which—involves the act of producing the document and the contents of the document, to the context of passcode production, which involves the act of producing the passcode that protects the contents of the electronic device.”
Read it at njcourts.govquote checked 2026-10-06
- In Utah, in State v. Valdez (2023), the Supreme Court of Utah held that verbally providing a cell phone passcode to law enforcement is testimonial for Fifth Amendment purposes, that because the disclosure of a passcode involves traditional oral testimony the act-of-production analysis urged by the State does not apply, and that for the same reasons the foregone conclusion exception is inapplicable.
  State v. Valdez, 2023 UT 26, 552 P.3d 159 (Utah Dec. 14, 2023), ¶ 73, opinion of the Court (holding)
  “We hold that verbally providing a cell phone passcode to law enforcement is testimonial for Fifth Amendment purposes. Since the disclosure of a passcode involves traditional oral testimony, the act-of-production analysis urged by the State does not apply. And for the same reasons, the foregone conclusion exception is inapplicable.”
  Read it at utcourts.govquote checked 2026-10-06
- In Utah, in Valdez, the court said that the questions about how the Fifth Amendment extends to law enforcement’s efforts to unlock seized devices and decrypt their contents had proven to be especially complex where law enforcement attempts to access the contents of a seized device by means that do not require the suspect to disclose the actual passcode, such as obtaining an order to compel the suspect to provide an unlocked device; it said that was not the situation before it, because law enforcement asked Valdez to verbally provide his passcode.
  State v. Valdez, 2023 UT 26 (Utah Dec. 14, 2023), ¶¶ 7–8, opinion of the Court (the court's description of what the case did not involve)
  “The prevalence of passcodes that encrypt the information on electronic devices—which are often seized by law enforcement while investigating criminal conduct—has raised important—questions about how the Fifth Amendment extends to law enforcement’s efforts to unlock these devices and decrypt the contents inside. These questions have proven to be especially complex where law enforcement attempts to access the contents of a seized device by means that do not require the suspect to disclose the actual passcode—like, for example, obtaining an order to compel the suspect to provide an unlocked device.—But that is not the situation we have before us. Here, law enforcement asked Valdez to verbally provide his passcode.”
  Read it at utcourts.govquote checked 2026-10-06
- In Indiana, in Seo v. State (2020), the Supreme Court of Indiana held that the compelled production of an unlocked smartphone is testimonial and entitled to Fifth Amendment protection unless the State demonstrates that the foregone conclusion exception applies, and that in that case the State had failed to make that showing.
  Seo v. State, 148 N.E.3d 952 (Ind. June 23, 2020), slip op. at 5, opinion of the Court (holding) (CourtListener copy of the court's opinion)
  “We agree with Seo. The compelled production of an unlocked smartphone is testimonial and entitled to Fifth Amendment protection— unless the State demonstrates the foregone conclusion exception applies. Here, the State has failed to make that showing; and this case also highlights concerns with extending the limited exception to this context.”
  Read it at storage.courtlistener.comquote checked 2026-10-06
- In Pennsylvania, in Commonwealth v. Davis (2019), the Supreme Court of Pennsylvania considered whether a defendant may be compelled to disclose a password to allow the Commonwealth access to the defendant’s lawfully-seized, but encrypted, computer; it found that such compulsion is violative of the Fifth Amendment to the United States Constitution’s prohibition against self-incrimination, and held that the compelled recollection of the appellant’s password is testimonial in nature and, consequently, privileged under the Fifth Amendment.
  Commonwealth v. Davis, 220 A.3d 534 (Pa. Nov. 20, 2019), opinion of the Court (Todd, J.), slip op. at 1 and 24 (holding; the password to a computer)
  “In this appeal by allowance, we consider an issue of first impression: Whether a defendant may be compelled to disclose a password to allow the Commonwealth access to the defendant’s lawfully-seized, but encrypted, computer. For the reasons that follow, we find that such compulsion is violative of the Fifth Amendment to the United States Constitution’s prohibition against self-incrimination. Thus, we reverse the order of the Superior Court.—Thus, we hold that the compelled recollection of Appellant’s password is testimonial in nature, and, consequently, privileged under the Fifth Amendment to the United States Constitution.”
  Read it at pacourts.usquote checked 2026-10-06
- In New Jersey, in Andrews, the Supreme Court of New Jersey considered whether a court order requiring a criminal defendant to disclose the passcodes to his passcode-protected cellphones violates the Self-Incrimination Clause of the Fifth Amendment to the United States Constitution or New Jersey’s common law or statutory protections against self-incrimination; it concluded that it does not and affirmed the Appellate Division’s judgment.
  State v. Andrews, 234 A.3d 1254 (N.J. Aug. 10, 2020), opinion of the Court (Solomon, J.), opening paragraph (holding)
  “This appeal presents an issue of first impression to our Court -- whether a court order requiring a criminal defendant to disclose the passcodes to his passcode-protected cellphones violates the Self-Incrimination Clause of the Fifth Amendment to the United States Constitution or New Jersey’s common law or statutory protections against self-incrimination. We conclude that it does not and affirm the Appellate Division’s judgment.”
  Read it at njcourts.govquote checked 2026-10-06
- In Illinois, in People v. Sneed (2023), the Supreme Court of Illinois concluded that compelling the act of producing the passcode to a cell phone by entering it into the phone is testimonial to the extent that performing the act of entering the passcode implicitly asserts that the person entering it has the ability to unlock the phone; that the foregone conclusion test is applicable in the context of the compelled production of cell phone passcodes; that in applying the test in this context the proper focus is on the passcode itself rather than on the contents of the phone; and that the foregone conclusion doctrine applies as an exception to the fifth amendment privilege in that case. It said that because the State’s motion to compel sought an order for the defendant to either enter the passcode or provide it to officers, compliance with the order would not require the defendant to disclose the passcode, and that it need not consider whether disclosing the passcode is sufficiently testimonial to be privileged where entering the passcode would not be.
  People v. Sneed, 2023 IL 127968, 230 N.E.3d 97 (Ill. June 15, 2023), ¶ 3, ¶ 115 and n.7 (attached to ¶ 113), opinion of the Court (holding)
  “We now affirm the judgment of the appellate court, albeit on different grounds.—We conclude as follows:—(2) compelling the act of producing the passcode to a cell phone by entering it into the phone is testimonial to the extent that performing the act of entering the passcode implicitly asserts that the person entering it has the ability to unlock the phone—(3) the foregone conclusion test is applicable in the context of the compelled production of cell phone passcodes; (4) in applying the foregone conclusion test in this context, the proper focus is on the passcode itself rather than on the contents of the phone; and (5) the foregone conclusion doctrine applies as an exception to the fifth amendment privilege in this case.—Because the State’s motion to compel sought an order for defendant to either enter the passcode or provide it to officers, compliance with the order would not require defendant to disclose the passcode, and this court need not consider whether disclosing the passcode is sufficiently testimonial to be privileged where entering the passcode would not be.”
  Read it at illinoiscourts.govquote checked 2026-10-06
- In Massachusetts, in Commonwealth v. Jones (2019), the Supreme Judicial Court of Massachusetts concluded that when the Commonwealth seeks an order pursuant to its decision in Gelfgatt compelling a defendant to decrypt an electronic device by entering a password, art. 12 of the Massachusetts Declaration of Rights requires the Commonwealth to prove that the defendant knows the password beyond a reasonable doubt for the foregone conclusion exception to apply, and that the Commonwealth met its burden in that case.
  Commonwealth v. Jones, 481 Mass. 540, 117 N.E.3d 702 (Mass. Mar. 6, 2019), slip op. at 2-4, opinion of the Court (Kafker, J.) (holding under art. 12) (archived copy of the court’s slip opinion)
  “The central legal issue concerned whether compelling the defendant to enter the password to the—cell phone would violate his privilege against self- incrimination guaranteed by both the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights.—We conclude that when the Commonwealth seeks an order pursuant to our decision in Gelfgatt (Gelfgatt order or motion) compelling a defendant to decrypt an electronic device by entering a password, art. 12 requires the Commonwealth to prove that the defendant knows the password beyond a reasonable doubt for the foregone conclusion exception to apply. We also conclude that the Commonwealth met its burden in this case.”
  Read it at web.archive.orgquote checked 2026-10-06
- In Oregon, in State v. Pittman (2021), the Supreme Court of Oregon, “faced with the circumstances and law as they presently exist,” construed Article I, section 12 of the Oregon Constitution to permit an order compelling a defendant to unlock a cell phone so long as the state (1) has a valid warrant authorizing it to seize and search the phone; (2) already knows the information that the act of unlocking the phone, by itself, would communicate; and (3) is prohibited from using the defendant’s act against the defendant, except to obtain access to the contents of the phone; it said those circumstances were not present in that case, and reversed.
  State v. Pittman, 367 Or. 498, 479 P.3d 1028 (Or. Jan. 28, 2021), opinion of the Court (Walters, C.J.), 367 Or. at 525 and 534 (the requirements and the disposition)
  “But, today, faced with the circumstances and law as they presently exist, we construe Article I, section 12, to permit an order compelling a defendant to unlock a cell phone so long as the state (1) has a valid warrant authoriz- ing it to seize and search the phone; (2) already knows the information that the act of unlocking the phone, by itself, would communicate; and (3) is prohibited from using defen- dant’s act against defendant, except to obtain access to the contents of the phone.—Although Article I, section 12, permits a trial court order compelling a defendant to unlock a cell phone in cer- tain circumstances, those circumstances are not present in this case. The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to that court for further proceedings.”
  Read it at ojd.contentdm.oclc.orgquote checked 2026-10-06
- In Oregon, in Pittman, the court said that, because it concluded that the trial court’s order violated Article I, section 12 of the Oregon Constitution, it did not reach the defendant’s Fifth Amendment argument.
  State v. Pittman, 367 Or. 498, 479 P.3d 1028 (Or. Jan. 28, 2021), opinion of the Court (Walters, C.J.), 367 Or. at 508 (the constitutional ground)
  “We begin with the Oregon Constitution and, in particular, Article I, section 12.—Because we conclude that the trial court’s order violated that state constitutional provision, we do not reach defendant’s Fifth Amendment argument.”
  Read it at ojd.contentdm.oclc.orgquote checked 2026-10-06
- In Utah, in Valdez (14 December 2023), the Supreme Court of Utah said that the United States Supreme Court had not yet addressed this specific question — whether an accused has a Fifth Amendment right not to disclose a passcode to an electronic device when law enforcement has a valid warrant to search the device, which it called a question of first impression for that court — so it analyzed existing Fifth Amendment precedent to determine how it should extend to this new factual context.
  State v. Valdez, 2023 UT 26 (Utah Dec. 14, 2023), ¶ 6, opinion of the Court (the court's statement as of its decision date)
  “Whether an accused has a Fifth Amendment right not to disclose a passcode to an electronic device when law enforcement has a valid warrant to search the device is a question of first impression for this court. The United States Supreme Court has not yet addressed this specific question, so we analyze existing Fifth Amendment precedent to determine how it should extend to this new factual context.”
  Read it at utcourts.govquote checked 2026-10-06
- In the D.C. Circuit, in United States v. Brown (17 January 2025), the court said that if Schwartz had instead been compelled to disclose whether he could open the phone, and made to say yes or to verbally disclose the password, those answers unquestionably would be testimonial communications; this is a statement about a situation that case did not involve.
  United States v. Brown, No. 23-3074 (D.C. Cir. Jan. 17, 2025), slip op. 25–26
  “If Schwartz had instead been compelled to disclose whether he could open the phone, and made to say yes or to verbally disclose the password, those answers unquestionably would be testimonial communications.”
  Read it at media.cadc.uscourts.govquote checked 2026-10-01

How far can they actually get in

What the vendor documentation says is reachable in each device state — not what any tool can do.

Off / before first unlock
The Android Open Source Project’s file-based encryption documentation says testers can verify that CE storage is locked before the device has been unlocked for the first time since boot.
Android Open Source Project, "File-based encryption" (source.android.com), as fetched 2026-10-01
“testers can verify that CE storage is locked before the device has been unlocked for the first time since boot”
Read it at source.android.comquote checked 2026-10-01
After first unlock
Apple’s Platform Security Guide says the Protected Until First User Authentication class behaves in the same way as Complete Protection, except that the decrypted class key isn’t removed from memory when the device is locked or the user logged out, and that it is the default class for all third-party app data not otherwise assigned to a Data Protection class.
Apple Platform Security Guide — "Data Protection classes", published 19 Dec 2024, Apple
“Protected Until First User Authentication—This class behaves in the same way as Complete Protection, except that the decrypted class key isn’t removed from memory when the device is locked or the user logged out.—This is the default class for all third-party app data not otherwise assigned to a Data Protection class.”
Read it at support.apple.comquote checked 2026-10-04

The short answer, country by country

In England & Wales and Scotland, a person to whom a section 49 notice under the Regulation of Investigatory Powers Act 2000 has been given is guilty of an offence under s.53(1) if they knowingly fail, in accordance with the notice, to make the disclosure required by virtue of the giving of the notice. A notice imposing a disclosure requirement in respect of protected information must be given in writing or, if not in writing, in a manner that produces a record of its having been given (s.49(4)). Schedule 2 to the Act says that, subject to the other provisions of that Schedule, a person has the appropriate permission in relation to any protected information if, and only if, written permission for the giving of section 49 notices in relation to that information has been granted — in England and Wales, by a Circuit judge; in Scotland, by a sheriff. Paragraph 4 of that Schedule applies to protected information falling within section 49(1)(a), (b) or (c) which is not information in the case of which paragraph 2 or 3 applies; paragraph 4(2) says that, subject to paragraph 6, where the statutory power was exercised, or is likely to be exercised, by the police, the police have the appropriate permission in relation to the protected information, without any grant of permission under paragraph 1. Paragraph 2 of that Schedule, which paragraph 4 refers to, applies in the case of protected information falling within section 49(1)(a), (b) or (c) where the statutory power in question is one exercised, or to be exercised, in accordance with a warrant issued by the Secretary of State or a person holding judicial office, an authorisation under Part III of the Police Act 1997, or a targeted equipment interference warrant issued under section 106 of the Investigatory Powers Act 2016; and, subject to sub-paragraphs (3) to (5) and paragraph 6(1), a person has the appropriate permission in relation to that protected information (without any grant of permission under paragraph 1) if the warrant or, as the case may be, the authorisation contained the relevant authority’s permission for the giving of section 49 notices in relation to protected information to be obtained under the warrant or authorisation, or, since the issue of the warrant or authorisation, written permission has been granted by the relevant authority for the giving of such notices in relation to protected information obtained under the warrant or authorisation. Paragraph 2(9) says that protected information that comes into a person’s possession by means of the exercise of any statutory power which is exercisable without a warrant, but is so exercisable in the course of, or in connection with, the exercise of another statutory power for which a warrant is required, shall not be taken, by reason only of the warrant required for the exercise of that other statutory power, to be information in the case of which paragraph 2 applies. Paragraph 3 is not quoted here. Paragraph 6(2) of that Schedule says that, subject to sub-paragraph (3), a constable does not by virtue of paragraph 1, 4 or 5 have the appropriate permission in relation to any protected information unless he is of or above the rank of superintendent, or permission to give a section 49 notice in relation to that information has been granted by a person holding the rank of superintendent, or any higher rank.

In Australia, under s.3LA(1) of the Crimes Act 1914 (Cth) a constable may apply to a magistrate for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow a constable to do one or more of a listed set of things, which include accessing data held in, or accessible from, a computer or data storage device, provided the computer or storage device is on warrant premises, was found in the course of an ordinary search or a frisk search authorised by a warrant under s.3E, has been moved under s.3K(2) and is at a place for examination or processing, or has been seized under that Division. Under s.3LA(5), a person commits an offence if they are subject to such an order, are capable of complying with a requirement in it, and omit to do an act that contravenes the requirement; the stated penalty is imprisonment for 5 years or 300 penalty units, or both. Under s.3LA(6), a person commits an offence if they are subject to such an order, are capable of complying with a requirement in it, and omit to do an act, and the omission contravenes the requirement, and the offence to which the relevant warrant relates is a serious offence or a serious terrorism offence; the penalty stated is imprisonment for 10 years or 600 penalty units, or both.

The Australian state order regimes carry offences too. In New South Wales, a specified person for a digital evidence access order must not, without reasonable excuse, fail to comply with a direction given, in accordance with the order, by the executing officer. In New South Wales, s.76AO(2) says that, without limiting subsection (1), it is not a reasonable excuse for a specified person for a digital evidence access order to fail to comply with the order or a requirement made in accordance with the order on the ground that complying with the order or the requirement would tend to incriminate the person or otherwise expose the person to a penalty. In Queensland, s.205A(1) of the Criminal Code says that a person who, without reasonable excuse, contravenes an order made under the Police Powers and Responsibilities Act 2000, section 154(1) or (2), 154A(2) or 178A(1), or an order made under the Crime and Corruption Act 2001, section 88A(1) or (2) or 88B(2), commits a crime, and s.205A(2) says that it is not a reasonable excuse to contravene an order made under those provisions on the basis that complying with the order might tend to incriminate the person or expose the person to a penalty. In Victoria, under s.465AA(9) of the Crimes Act 1958, a person commits an offence if the person has relevant knowledge of the computer or data storage device or a computer network of which it forms or formed a part, or of measures applied to protect data held in, or accessible from, it; the person is informed by a police officer of the order and its terms and that it is an indictable offence punishable by imprisonment to fail to comply with the order; and the person fails to comply with the order without reasonable excuse. In Victoria, s.465AA(6) of the Crimes Act 1958 says a person is not excused from complying with an order on the ground that complying with it may result in information being provided that might incriminate the person.

The Australian Border Force’s written answer AE22-050 to a question taken on notice at the Senate Standing Committee on Legal and Constitutional Affairs’ Additional Budget Estimates hearing of 14 February 2022 is about devices at the border, not about these orders. In it the ABF said there was no legal compulsion for a traveller to provide a password/passcode or provide assistance to an electronic device at the border, and said that if an individual refused to comply with a request or provide a password for an examination of their electronic device, and an ABF officer considered there to be a risk to the border, the ABF officer was authorised to seize that device for further examination prior to being returned. That is the Australian Border Force’s statement to the committee, not a provision of law quoted here; see At the border?

In the United States, the matrix cell is marked unsettled. The state supreme court decisions quoted in its notes each concern a particular act — verbally providing a passcode, disclosing passcodes or a computer password, entering a passcode, unlocking a phone, or producing a phone unlocked — and each rests on the ground that court decided: the Fifth Amendment, the state’s own law, or both. A state court’s decision is a decision of that state’s court; the state passcode rulings page sets out each one with its quoted text. United States v. Payne (Ninth Circuit) and United States v. Brown (D.C. Circuit), quoted on the related pages, are about unlocking a phone with a thumb; federal appeals decisions on decrypting hard drives and other seized devices are on the state passcode rulings page. See Can they use my face or fingerprint? and the US passcode-versus-biometrics page.

Where the jurisdictions differ

The England & Wales, Scotland and Australian cells each attach an offence to a formal instrument: a s.49 notice (s.53(1)), a s.3LA order (s.3LA(5)), or a state order. The United States cell is different in kind: it rests on court decisions, not on a statute creating an offence, and the decisions quoted in its notes do not all come out the same way. That is not a statement that refusing a court’s order carries no penalty: the state passcode rulings page quotes decisions that arose from a finding of contempt.

The device-state strip shown with the matrix is vendor documentation, not law. The Android Open Source Project’s file-based encryption documentation says testers can verify that CE storage is locked before the device has been unlocked for the first time since boot, and Apple’s Platform Security Guide says the Protected Until First User Authentication class behaves in the same way as Complete Protection, except that the decrypted class key isn’t removed from memory when the device is locked or the user logged out, and that it is the default class for all third-party app data not otherwise assigned to a Data Protection class. The strip does not show the guide’s separate Complete Protection entry; that entry says that, for data in the Complete Protection class, shortly after the user locks a device the decrypted class key is discarded, rendering all data in this class inaccessible until the user enters the passcode again or unlocks the device using Optic ID, Face ID, or Touch ID.

Read further

For the difference between being asked for a passcode and being served a s.49 notice, see rightsandlimits.com’s guide to phone passwords. See also At the border?, the RIPA s.49 notice, in full, computer access orders under s.3LA, the two US thumb-unlock decisions, and passcode strength and why it matters.

Last reviewed 2026-10-06. Next review due 2026-12-08. No lawyer has reviewed this page — see [email protected] if you think something here is wrong.