Can the police compel you to give up your iPhone passcode?
Not according to one federal court’s ruling. Doing so would be a violation of your Fifth Amendment rights.
The case in question involved two insider trading suspects and the Securities and Exchange Commission’s desire to get at evidence it believed was present on the defendants’ work-issued iPhones.
Unfortunately for the SEC, the phones were protected with passcodes.
“The SEC argues Defendants, as former Bank data analysts, are corporate custodians in possession of corporate records, and as such cannot assert their Fifth Amendment privilege in refusing to disclose their passcodes. Defendants disagree they are corporate custodians and argue providing the passcodes to their phones is ‘testimonial’ in nature and violates the Fifth Amendment,” says the ruling.
So, who’s right?
According to the court, it’s the defendants.
“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.”
Your passcode is testimonial, and thus forcing you to reveal it would violate your right against self-incrimination.
But according to one constitutional scholar, it wouldn’t be wise to think that there’s no feasible way for the government to get around said Fifth Amendment protections.
“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. The passcode itself could be independently incriminating, at least in some cases. Imagine a conspiracy case in which members of the conspiracy use a common passcode. Proof that a suspect used that exact passcode on his own phone would be incriminating evidence, as it could help to show membership in the conspiracy,” writes Orin Kerr for the Washington Post.
“Because the passcode itself could be incriminating, the smart way to limit the Fifth Amendment problem is for the government to ask for an order compelling the target to enter in the passcode rather than to divulge it to the police.”
And we’re just talking about passcodes. If you use Apple’s Touch ID or any other sort of biometrics to lock your devices, you may be shit out of luck.
