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Phone Passwords Protected By 5th Amendment, Says Federal Court
Ars Technica reports that a Federal court in Pennsylvania ruled Wednesday that the Fifth Amendment protects from compelled disclosure the passwords that two insider-trading suspects used on their mobile phones. In this case, the SEC is investigating two former Capital One data analysts who allegedly used insider information associated with their jobs to trade stocks—in this case, a $150,000 investment allegedly turned into $2.8 million. Regulators suspect the mobile devices are holding evidence of insider trading and demanded that the two turn over their passcodes.
However, the court ruled, "Since the passcodes to Defendants' work-issued smartphones are not corporate records, the act of producing their personal passcodes is testimonial in nature and Defendants properly invoke their fifth Amendment privilege."
No, not at all.
Anybody who is even slightly versed in proper IT security terminology knows the difference between "who you are", "what you have" and "what you know" authentication factors. (Along with the difference between authentication, authorization, and accountability, and the concepts of integrity and nonrepudiation. If you don't know any one of these, then you haven't been properly trained in information security.)
A key is "what you have", whereas a fingerprint is "who you are". You can't claim the 5th on either of those. You can however claim the 5th on "what you know" which is what a password is. However if you, for example, write down the password somewhere, that can be considered a "what you have" and wouldn't be protected by the 5th.
On iOS, after 24 hours or less than 10 failed fingerprint attempts, you are required to enter your password to gain access to the phone (fingerprint doesn't work at that point). I would assume that it would take longer than 24 hours for the police to convince a judge to force you to use your fingerprint, and a emergency stays by appeals courts do happen as well. I also believe that the knowledge of which finger unlocks your phone would be protected by the fifth amendment, so that you would not have to inform law enforcement which fingerprint opens the phone and as a result the phone requires a password after many failed attempts.
UNFORTUNATELY, There was an a decision a about a year ago that ruled that you COULD be forced to unlock your phone with your fingerprint, even if you could not be forced to do so with your passcode.
FORTUNATELY, it was only a STATE Court; so, unless you happen to be caught in Virginia, you could still fight it, and with this decision as (non-controlling, but persuasive) precedent, maybe even score a win for all of us!
Well, first let us look at the text of the 5th amendment:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
As you can see, the 5th amendment is not just about being forced to testify against oneself. It encompasses much of what we in the States consider the 'innocent until proven guilty' principle and the idea of 'due process.' This means that not only do you have no obligation to prove yourself innocent, but also that you are under no obligation to help the courts prove your guilt. The 5th amendment (along with a few others) tries to make it more difficult to wrongly convict the innocent at the cost of occasionally not convicting the guilty.
While not convicting a guilty person is seen as an injustice, I would like to think that most people would see the wrongful conviction of an innocent person as a significantly greater injustice.