Court: Authorities can't force suspects to reveal phone passwords

Court: Authorities can't force suspects to reveal phone passwords
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Forcing suspects to give up their cellphone passwords is a violation of the constitutional right against self-incrimination, a federal judge ruled Wednesday.


“We find, as the [Securities and Exchange Commission] is not seeking business records but Defendants' personal thought processes, Defendants may properly invoke their Fifth Amendment right," U.S. District Judge Mark Kearney of Pennsylvania wrote.

The decision comes amid a backdrop of national debate over the degree of access law enforcement should have over users’ encrypted data.

While the law enforcement community has widely pushed for broader authority over data, claiming that end-to-end encryption hampers investigations, critics suggest that building a “back door” into devices both infringes on privacy rights and undermines overall system security.

In the Pennsylvania case, regulators suspected the mobile phones of two former Capital One employees held evidence of insider trading. The defendants declined to turn over their passwords, citing the Fifth Amendment.

The court agreed, noting that the SEC failed to show evidence that the phones held incriminating documents.

“SEC does not show the ‘existence’ of any requested documents actually existing on the smartphones,” Kearney wrote. “Merely possessing the smartphones is insufficient if the SEC cannot show what is actually on the device.”

A Washington Post report revealed today that the Obama administration looked into four possible approaches that would have allowed law enforcement guaranteed access to encrypted data, but ultimately rejected each option.

All four approaches were tantamount to the much-maligned “back door,” which is partly why the administration decided not to move forward with any one idea.

“Rather than sparking more discussion, government-proposed technical approaches would almost certainly be perceived as proposals to introduce ‘backdoors’ or vulnerabilities in technology products and services and increase tensions rather [than] build cooperation,” an unclassified White House memo read.

In the absence of guaranteed access, law enforcement agencies have tried to compel suspects to turn over their phone passwords in order to bypass encryption and gain access to communications and data stored on devices.