Smartphone Passcodes Can Take The 5th

In an insider trading case mounted by the SEC, the agency wanted access to the two defendants’ company-issued cell phones, and in order to get it they needed the passcodes. A district court said “no” on Fifth Amendment grounds, cutting an interesting distinction between company information on an employee’s device and the passcode itself, which even the company did not have. The court found the passcodes were “personal thought processes,” citing a case that found decryption of a hard drive to be “testimonial” and analogizing to another case that compared giving up passwords to providing the combination to a wall safe.