Judge Says Suspects Can’t Be Forced To Reveal Phone Passwords

Fifth Amendment protections apparently extend to a person’s cell phone password. At least that is the opinion of U.S. District Judge Mark Kearney. Two former employees of Capital One are not required to disclose the passcodes they used on their company phones.

“We now consider another perspective on the interplay of mobile technology, employer rights and former employees’ Fifth Amendment protections from disclosing personal secret passcodes created by Defendants, with their former employer’s consent, to access the smartphones owned by their former employer.”

The Fifth Amendment essentially protects Americans from being forced to provide self-incriminating testimony. So, according to Judge Kearney, providing the passcodes to their phones could be a self-incriminating action.

The Plaintiff in the case is Securities and Exchange Commission (SEC), and they allege that two former employees of Capital One traded stocks with insider information. The two former employees were working as data analysts and allegedly had access to nonpublic information that could have helped them in the stock markets.

As Ars Technica reported, the two analysts reportedly turned a $150,000 investment into $2.8 million. The SEC thinks that incriminating information may remain on the analysts’ company phones. The phones were returned, but they can’t be accessed without the passwords.

The government’s request for the defendants to release their passwords would amount to testimony. Orin Kerr, a former federal prosecutor, mentioned that in the 1951 case of Hoffman v. United States, the court said that an answer was self-incriminating if it would support a conviction by itself or aid in a conviction.

“would in themselves support a conviction… [or] would furnish a link in the chain of evidence needed to prosecute”

The Supreme Court has never ruled on the matter, but there have been other court cases involving the issue. As Ars noted, in 2012 a federal appeals court ruled that making a child porn suspect de-crypt his password-protected hard drive would be in violation of the Fifth Amendment.

Even with previous court decisions, some legal scholars do not see providing a password as self-incriminating. Orin Kerr proposed that the defendants be made to enter their passwords, but not give the passwords to the government.

“Having the defendant enter in his passcode would minimize the Fifth Amendment implications of the compelled compliance, as it would not involve disclosing the potentially incriminating evidence of the passcode itself.”

In this latest case, Judge Kearney said that unless the SEC can name a specific document on the phones that they believe has incriminating information in it, he could not force the defendants to reveal their passwords.

[Photo by Sean Gallup / Getty Images]