In Commonwealth v. Joseph J. Davis, 2017 Pa. Super. 376, the Pennsylvania Superior found that a criminal defendant accused of sharing child pornography from his encrypted computer could be legally compelled to disclose the password necessary to decrypt the computer drive to law enforcement officials. The defendant argued that his right against self-incrimination provided by the 5th Amendment to the U.S. Constitution prevented him from being compelled to disclose the password. The court held that compelled disclosure of the password would not violate the defendant’s right against self-incrimination because disclosure would not be testimonial in nature because disclosure would add little or nothing to the sum total of the government’s information because the defendant had already implied the existence of the pornographic files on his computer and the prior investigation had already established that pornographic videos had been shared on the internet from the defendant’s computer.
In Commonwealth v. Patrick Cline, 2017 Pa. Super 417, the Pennsylvania Superior Court upheld the criminal conviction of a man who recorded a custody conference in the Lehigh County Courthouse. He was convicted of violating the Pennsylvania Wiretapping and Electronic Surveillance Control Act and given a sentence of incarceration for 11 1/2 to 23 months.
The defendant appealed on the grounds that, 1. He did not know that his act was illegal, 2. He was denied due process since information from the custody conference was received and utilized by the judge in a subsequent custody trial, and that, 3. He was denied due process because court proceedings are supposed to be public and not held in secret.
The Court denied his appeal on the first issue, because of the general principle (also stated in the Pennsylvania Criminal Code at 18 Pa.C.S. 304) that ignorance of mistake of law is no defense. However, the Court did not make any substantive ruling on the other two issues, holding that the defendant had waived those grounds by not raising them before the trial court. Accordingly, it is possible that those due process arguments may still be viable if properly raised in the correct procedural context.