Forcing suspects to reveal phone passwords is unconstitutional, court says

The Fifth Amendment right against compelled self-incrimination would be breached if two insider trading suspects were forced to turn over the passcodes of their locked mobile phones to the Securities and Exchange Commission, a federal judge ruled Sept 23. "We find, as the SEC is not seeking business records but Defendants' personal thought processes, Defendants may properly invoke their Fifth Amendment right," US District Judge Mark Kearney of Pennsylvania wrote.

Orin Kerr, a constitutional scholar and former federal prosecutor, suggested that the "Fifth Amendment issues raised by the content of the passcode could be addressed by having the defendants just enter in their passcodes rather than handing them over to the government." Kerr added, "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."