U.S. District Court rules that your phone's passcode is protected by the fifth amendment

U.S. District Court rules that your phone's passcode is protected by the fifth amendment
A District Court in Pennsylvania ruled today, that a passcode that locks a smartphone is protected by the fifth amendment to the constitution. This amendment protects a person from being forced to incriminate him or herself in a criminal case. We've all seen those cheesy Perry Mason episodes or movies where the defendant tells the wily D.A. that he is "pleading the fifth."

The case in Pennsylvania revolves around two Capital One analysts accused of insider trading. The government believed that the evidence of this crime was hidden inside the defendants' phones, and requested that they turn over the passcodes so that the handsets could be unlocked. The employees refused, and the matter became a separate legal issue.

Judge Mark Kearney of Pennsylvania said, "We find, as the SEC is not seeking business records but Defendants' personal thought processes, Defendants may properly invoke their Fifth Amendment right." The two analysts turned $150,000 into $2.8 million using information that they had acquired from their jobs with the bank.

Ironically, constitutional scholar Orin Kerr, said that having the defendants punch in the passcode themselves on their own phones, would eliminate the fifth amendment issue since the actual passcode would not have to be entered into evidence.

source: arstechnica (1), (2) via Phonescoop

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22 Comments

1. SirYar

Posts: 351; Member since: Jul 02, 2014

The fifth wha..? You Americans with your fancy names.

11. Manyci

Posts: 116; Member since: Aug 03, 2015

Yes, if you aren't from the US, you literally have no clue, what is this article about. At least I didn't understand a sentence... :(

13. Wiencon

Posts: 2278; Member since: Aug 06, 2014

At first I thought that password has to be at least 5 digits long :d But still I don't know what it's about

2. Fallen1

Posts: 288; Member since: Nov 14, 2014

This is great, about time this issue gets resolved.

18. willy42

Posts: 36; Member since: Mar 02, 2015

Yeah, but they've already ruled that you can be forced to submit a fingerprint if your phone is locked with a fingerprint sensor.

25. dankev

Posts: 7; Member since: Sep 27, 2014

It isn't really resolved. It's a lower court ruling. Other courts aren't bound by it.

3. jasrockett

Posts: 114; Member since: Oct 05, 2011

Wouldn't they just take the phone as evidence and then I would have thought some smart boffin could get inside the phone. It's evidence. This is about an American case but I assume that's what would happen here in Australia.

4. Plutonium239

Posts: 1114; Member since: Mar 17, 2015

Depends on the phone, Blackberry and Windows Phone would be hard to get into.

5. HASHTAG unregistered

Someone can correct me if I am wrong, but that sounds illegal.

26. dankev

Posts: 7; Member since: Sep 27, 2014

As long as a warrant was obtained to search the phone, it should be fine. Just like police breaking into a house with a search warrant.

12. surethom

Posts: 1561; Member since: Mar 04, 2009

What if your phone has a finger print scanner, can they force your finger onto the scanner to unlock?

14. Plutonium239

Posts: 1114; Member since: Mar 17, 2015

That would be illegal.

15. VZWuser76

Posts: 4974; Member since: Mar 04, 2010

16. Plutonium239

Posts: 1114; Member since: Mar 17, 2015

A fingerprint is simply a biometric passcode, if forcing any passcodes is illegal, than the same would apply to finger prints and other biometric identification.

20. VZWuser76

Posts: 4974; Member since: Mar 04, 2010

There are literally hundreds of articles stating that legally, passcodes (pin and pattern) are different than fingerprint unlock. Pin and pattern are protected, fingerprint isn't. The difference is they could unlock the device by holding your finger to the scanner. With a pin or pattern passcode, the accused would have to divulge information that could incriminate them. So with a pin and pattern unlock, you'd have to be an active participant in unlocking your device, with a fingerprint you wouldn't.

22. Plutonium239

Posts: 1114; Member since: Mar 17, 2015

You would have to actively participate to put your finger on the phone, you could clench your fist and refuse. Your fingerprint is a key to unlocking your phone.There is no difference.

23. VZWuser76

Posts: 4974; Member since: Mar 04, 2010

Apparently, the courts disagree with you. And you don't have to actively participate for them to put your finger on the scanner, they can physically force you to do so. But short of torture, they can't force you to divulge your pin or pattern code, that's the difference. I don't understand why you're arguing with me on this, a judge has already ruled on it. You disagree, take it up with him.

24. VZWuser76

Posts: 4974; Member since: Mar 04, 2010

Also, before you say they can't legally physically force you to do anything, yes they can. If they go to arrest you and you resist, they can physically restrain you. They can also force you to be fingerprinted and take your possessions before locking you up. So long as there is a valid arrest warrant, they can force you. You don't have to be a willing participant or help them in anyway, but that will also go against you and probably net some other charges (resisting arrest, fleeing, obstruction, etc). So they can physically force you to put your finger on the scanner, but they can't physically force you to give up something that's in your mind. Just like with a search warrant they can search your house against your will, but they can't force you to help them search it.

27. dankev

Posts: 7; Member since: Sep 27, 2014

That is a trial court in Virginia. It does not set precedent outside of Virginia. I don't know the intricacies of Virginia courts, but it probably doesn't set precedent in Virginia, either, since it isn't an appellate court.

28. VZWuser76

Posts: 4974; Member since: Mar 04, 2010

But the point is a fingerprint is different from a pin or pattern code. The latter are something inside your mind and cannot be given up except through your consent. A fingerprint is different, you leave it whenever you touch something. If it were the same, then how are they able to print you when you get arrested? By doing so, you may incriminate yourself when you let them print you because those prints can be matched to prints at a crime scene.

17. Donte_W

Posts: 4; Member since: Nov 23, 2011

For the people that don't understand, the 5th amendment prettymuch says that a person DOES NOT have to testify themselves. They do not have to provide any evidence that would incriminate themselves. That guy unlocking his own phone would be him prettymuch giving up evidence against himself and by government law, he doesn't have to do it. That was smart on his part..

19. Chuck007

Posts: 1409; Member since: Mar 02, 2014

Which doesn't mean jack for the NSA, FBI, and CIA..

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