The federal district court in Eastern Pennsylvania has ruled that plaintiffs in the case SEC v. Bonan Huang et al cannot be compelled to give up the passcode to their cell phones. At issue was whether the defendants could be forced to give up passcodes to devices that were provided by their employer, but secured by passcodes chosen by the employees themselves.
The question of whether or not defendants can be required to unlock a personal device has generally been answered “No,” but the SEC argued that these were products owned by a corporation and merely provided to employees. The men in question, Bonan and Nan Huang, are accused of insider trading, turning a $150K initial investment into more than $2.8 million through illegal profiteering.
In the past, questions of whether or not a person can be compelled to testify have rested on what’s known as the “foreground conclusion” doctrine. Here’s what that means, generally speaking: If you have records of an event, and the government knows you have them, merely producing the records is not self-incrimination. If you are known to possess tax records that will demonstrate you cheated on your taxes, for example, then simply providing those documents is not self-incrimination. What the government isn’t allowed to do is order you to turn over documents if it has no specific knowledge that those documents contain information that may prove incriminating.
The government argued that since it knew the phones belonged to the men in question (this is not contested), simply requiring them to unlock the devices does not meaningfully incriminate them — it merely provides access. The Court ruled instead that:
The SEC proffers no evidence rising to a “reasonable particularity” any of the documents it alleges reside in the passcode protected phones. Instead, it argues only possession of the smartphones and Defendants were the sole users and possessors of their respective work-issued smartphones. SEC does not show the “existence” of any requested documents actually existing on the smartphones. Merely possessing the smartphones is insufficient if the SEC cannot show what is actually on the device.
Fingerprint scanners have become more popular, but they have their own issues.
The Washington Post thinks the court made a mistake in ruling that passcodes were protected by the Fifth Amendment’s right against self-incrimination, because access to the phone is independent of what records are stored inside it. But this simply highlights how difficult it is to apply old-fashioned notions of privacy to modern technology. It’s much easier to protect someone’s right against self-incrimination when documents can be neatly identified. Even a category as broad as tax receipts and business records still applies to a distinct set of material.
A smartphone is different. Only the most rigorous user will keep business and pleasure entirely sandboxed, which means the contents of old emails, attachments, photos, videos, and other work and personal documentation is intermingled and combined. The rise of BYOD only exacerbates this trend.
For now, passcode locks continue to enjoy more robust legal protection than fingerprint sensors. Previous judges have ruled that it’s legal to compel individuals to turn over fingerprint data, including the use of a fingerprint sensor to unlock a phone.
No comments:
Post a Comment