Is “I forget” a valid defense when court orders demand a smartphone password?

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On May 30, two suspects accused of extorting the so-called "Queen of Snapchat" as part of a sex-tape scandal are scheduled to appear in a Florida court. But as wild as the premise sounds, primarily the accused need only to answer a simple question on this visit. Miami-Dade Circuit Judge Charles Johnson wants an explanation as to why Hencha Voigt and her then boyfriend, Wesley Victor, can't remember the passcodes to their mobile phones.

If he doesn't believe them or if they remain silent, the two suspects face possible contempt charges and indefinite jail time for refusing a court order to unlock their phones so prosecutors can examine text messages. Their defense to that order, however, rests on an unsettled area of law. Voigt and Victor maintain that a court order requiring them to unlock an encrypted device is a breach of the Fifth Amendment right to be free from compelled self-incrimination.

If things don't go their way in court Tuesday, the duo certainly wouldn't be the first ones ordered to prison for failing to abide by a judge's decryption order. They likely won't be the last ones, either.

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