Earlier this year a Pennsylvania federal district court decided that a defendant could invoke his Fifth Amendment right to avoid self-incrimination by refusing to provide production of his smartphone passcode. In this case, the court denied a motion filed by the Securities and Exchange Commission (SEC) asking the Court to compel the defendant to produce his passcode. The Court held that the production of the passcode was personal in nature thus the defendant properly invoked his Fifth-Amendment rights.

The SEC tried to argue that because the smartphone was not the defendant’s personal property but rather the property of his employer, combined with the fact that the documents the SEC were interested in reviewing were company records, the employee was more akin to a custodian of records. Based upon this, the SEC argued that compelling the employee to produce his passcode was not a communication subject to the Fifth Amendment. The Court did not buy into the SEC’s argument.

The Court stated that the SEC’s reliance on the underlying documents was misplaced. The application of the Fifth Amendment does not turn on the nature or character of the underlying documents but rather on the production of the documents themselves. In this case, the production of the documents required testimony (in that he needed to provide the password) and could not be characterized by a “physical act”. The Court stated that where an act requires the use of the contents of a person’s mind or personal thought process… it cannot be “fairly characterized as a physical act”. Based on this, the Court held that the Fifth Amendment was properly invoked to preclude the defendant from being ordered to provide his passcode to his company smartphone.

Query how this holding would apply if the passcode had been a fingerprint ID scan? Smartphones, IPads and similar electronic devices have this security option (touch ID technology) as well. Swiping a thumb print in not the same as one’s “thought process” and would not require testimony. Applying the Court’s logic in the instant case seems to suggest that this Court would compel the defendant to produce the sought after records and not allow the invocation of the Fifth Amendment. However, this seems out of sync with the history behind the Fifth Amendment. Unfortunately what I think didn’t stop a court in Virginia last November from deciding just that. Namely, a finger swipe for a password was not entitled to protection by the Fifth Amendment. Time will tell what different courts will decide as technology advances. If you have any questions, please feel free to call one of the attorneys with Danziger Shapiro, P.C. to discuss this and other self-incrimination Fifth Amendment concerns in greater detail.

This entry is presented for informational purposes only and is not intended to constitute legal advice.

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