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."

Comments

A sudden breakout

[fishscene]

...of common sense no doubt! I love hearing stories of correct implementations.

Re:A sudden breakout

[CaptainLard]

Well of course. All we needed was for data privacy to impact a bank employee.

In other news, of all the financial improprieties why did the SEC end up being so good (apparently) at catching insider trading? Is it the crime that least rocks the boat?

Finally

[Teun]

Tough for the prosecutors but this is a flash of some sense.

Re:Finally

[Anonymous Coward]

It is more like being obliged to tell where you hid the key to the door that couldn't be forced. Your 5th amendment right obviously protects you.

Re:Finally

[ArmoredDragon]

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.

Re:Finally

[ArmoredDragon]

A somewhat opposing argument is that the documents (email, text messages, photographs, etc.) fall under "what you have", and that a court can compel you to produce those documents.

They can't compel you to turn over documents that they merely suspect to exist. They'd need not only proof of their existence, but also that they're relevant to the case. That's kind of hard to do without being able to decrypt them. I.e. simply saying "turn over all of your emails" isn't good enough if they can't A) prove that those emails exist to begin with, B) prove that those emails are relevant, assuming they exist, and pointing to blobs of an unreadable encrypted blob of data doesn't meet that standard.

But your finger prints is not protected

[Anonymous Coward]

by the fifth Amendment.
http://time.com/3558936/fingerprint-password-fifth-amendment/

Re:But your finger prints is not protected

[macs4all]

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!

Work Issued

[The Raven]

While I agree with the ruling, I must say that any idiot who uses a work issued phone to conduct illegal business is a special kind of idiot. There is no bus short enough.

Re:Isn't pleading the fifth roughly...

[Locke2005]

The Fifth Amendment means that when they torture you into confessing, it's not admissible in court? As an American, I find the concept of throwing out evidence somewhat questionable is well, as in, if someone is guilty, they are guilty, no matter how the evidence was obtained. There should be more direct consequences for unlawfully obtaining evidence, because supressing evidence obtained by violating rights only protects the guilty, as you said. What we really need is a way of punishing law enforcement for violating the rights of INNOCENT people, as it is, they don't even say "I'm sorry". The best we can hope for is to actually get reimbursed for the property they destroy.

Re:Hoorah!

[serviscope_minor]

The price of living free is that sometimes paedophiles will go free.

No system is perfect. In order to guarantee every pedo is locked up, 1000 innocents will have to be locked up for every pedo. Sane people realise that's not worth the tradeoff.

Re:Isn't pleading the fifth roughly...

[jafiwam]

... equivalent to admitting that one is guilty of at least one thing that is just as bad as whatever it is they are being charged with, or that what one is being charged with is actually entirely accurate?

Granted, they don't know exactly what that something one is evidently guilty of might be, but still...

Maybe I'm being just a goofy non-American here, but I honestly don't understand the point. In the general case, would someone explain to me how this constitutional amendment protects genuinely innocent people?

Yes.

And. So what?

Not having the 5th amendment opens the door to what would basically be torture. I think you want the government doing that less than you want the government to win this case.

Anyway, they can go ASK THE FUCKING NSA about what was transferred between the phones. Oh, right, that wasn't a legal search either. Sometimes the parallel construction doesn't work I guess.

Re:Isn't pleading the fifth roughly...

[TWX]

Part of the point is that confessing under pressure or torture doesn't mean that the confession is real. If one is being tortured, one may say anything that one believes will end the torture, if the torturer has stated that saying that thing will cause the torture to stop.

Also, don't forget, everyone is innocent until they're convicted in a court of law. Right now, in the eyes of the law, Bill Cosby is completely innocent of any and all accusations that have been made against him. Individuals may choose whether or not to believe that he has or has not done the things that he has been accused of, but he has not been indicted or convicted of anything, and given that it doesn't sound like any evidence exists to substantiate these claims of acts a long time ago, it's very likely that he will not see criminal charges based on the accusations. That doesn't mean that people will trust him like they did before, but in the eyes of the law he is an innocent man.

Re:Isn't pleading the fifth roughly...

[Lakitu]

As an American, I find the concept of throwing out evidence somewhat questionable is well, as in, if someone is guilty, they are guilty, no matter how the evidence was obtained.

This should be "despite being American, ...". Guilt is determined by the courts and it is done so using evidence gathered. If a person of questionable guilt is found guilty in a court of law, then ALL evidence that was used against them to do so is suddenly retroactively converted into having no requirements for its gathering. The person is guilty because of the evidence, and the evidence is admissable because they will be found guilty. This might be a nice system if we could pause the universe and question God as to whether we're correct or not, but we cannot, and if we could, we would probably not need arcane concepts like legal systems in the first place.

How could you possibly hold someone accountable for destroying your property if it's perfectly acceptable for them to destroy your property if you will eventually be convicted? It's just an incentive for everyone involved to convict you regardless of whether you did anything or not.

Both you and the non-American OP are viewing this in a simplistic manner as if a trial exists of questions such as "did you do it?" with a yes or no response. They are not. A skilled prosecutor can make it seem like your 8:59 quick trip to a convenience store reeks of guilt when it was information you happily provided to police. If "evidence" were always as evident as a bloody knife, then the criminals would just clean up after themselves without fail.

It's fucking crazy that a place like /., where people so greatly appreciate the overreaching of the NSA, some people can so quickly do a 180 and justify the same behavior so long as they come up guilty in the end! The 4th and 5th amendments, protecting searches without warrant and protecting you from having to testify against yourself, are intricately and irrevocably linked together. How can you justify not consenting to a search if you can be forced to consent to provide evidence incriminating yourself?