US District Judge: Forcing defendants to turn over phone passcodes unconstitutional
Privacy and security are two major ingredients in the cutthroat world of enterprise technology. BlackBerry’s been all about it, so has BlackPhone. Fingerprint scanners are here as a natural evolution of the curiosity in the field of mobile data protection. But whatever you do, if you end up in court for whatever reason and your phone is submitted for evidence, you don’t have to surrender one of the most basic security measures ever: your passcode.
US District Judge Mark Kearney of Pennsylvania issued an opinion within the SEC-filed case against former Capital One employees who traded based on insider information. Those traders had work-issued smartphones which they could and did lock with passcodes. Capital One, on policy, owns the phones and the data on them, but does not record the passcodes for security reasons. The SEC believes those devices contain pertinent documents to its argument and requested the defendants to give up the passcodes to the phones. In turn, the defendants invoked their Fifth Amendment right to avoid self-incrimination.
The key point in the judge’s agreement with the defendants comes down to if you consider passcodes as incriminating evidence. Judge Kearney goes on to write:
We find, as the SEC is not seeking business records but Defendants’ personal thought processes, Defendants may properly invoke their Fifth Amendment right […] the SEC
seeks to compel production of the passcodes which require intrusion into the knowledge of Defendants and no one else. There is no evidence the Bank assigned Defendants passcodes to their phones or kept track of Defendants’ passcodes.
A law professor, though, thinks that this protection can be circumvented by compelling the defendants to enter the passcode (and supposedly remove the passcode requirement) instead of turning over the passcode. Defendants would acknowledge the existence of a passcode, but would not have to reveal it and thus, not be able to exert Fifth Amendment rights.
Of course, things can change in the slow grind of the courts. A good idea in the first place is to not get in trouble.