According to a recent Federal Court’s ruling, it is not okay for police to force suspects to unlock their phones with a passcode.
And, doing so would be a violation of your Fifth Amendment Rights in the US Constitution.
The ruling came as the conclusion of a case, where Securities and Exchange Commission (SEC) accused Bonan Huang and Nan Huang for conducting illegal Insider Trading.
As a result of which, the investigating agencies cannot question the suspects for giving out their smartphone passcodes or any form of encryption passwords or even their existence on the suspect's device.
They are said to have used their positions as data analysts at Capital One Bank (credit card issuing Bank). The bank gave each of them a mobile phone, allowing them to use a passcode of their choice.
Huang’s left Capital One and submitted the mobile phones to the bank, the bank then gave the mobile phones to SEC locked with passcodes.
Now, SEC unable to unlock the devices puts accusations on them that:
- Huangs’ conducted random non-public database searches of their employer and obtained aggregated sales data for the companies they searched; beyond their scope of work.
- Huangs’ worked against their duties by using the non-public information for their personal gains.
Collectively, Huangs’ “Made profitable securities transactions on the basis of this material, non-public information in advance of the public release of quarterly sales announcements by these companies.”
Judge Kearney disagreed, though,
“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.”
The 5th amendment is more than 200 years old, who knew in that era that it would become useful like this; for criminal proceedings against the crimes done in the Cyberspace.
However, if there are evidence that support the criminal charges on an accused, then he/she is not entitled to opt for such privilege.
Also, if the accused accepts committing a cyber crime, hides it under an encryption, and further appeals to take the fifth then he is not allowed to get that privilege.
The Fifth Amendment Says:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
So, who’s right?
But, when SEC is sure about Huang's being the culprits then they can appeal to a higher court for the forensic examination of the mobile devices.
However, if the fifth amendment says the suspects cannot be questioned for self-incrimination, but if a higher court of law orders to initiate forensic investigation of the two devices allotted to Huang’s then it can reveal the truth.
Also, if SEC lacks in providing acceptable evidence supporting their accusations then the court may not allow for the forensic examination as well.