Federal Judge Enhances Cell Phone Privacy

A federal District Court Judge in Pennsylvania applied the doctrine known as "Act of Production Immunity" to prohibit the U.S. Securities and Exchange Commission (SEC) from forcing defendants accused of insider trading to disclose the passcodes necessary for the government to access their phones. Act of Production Immunity is an outgrowth of the Fifth Amendment right against self-incrimination. Under it, a defendant cannot be required to disclose the contents of their mind, even if doing so is not by itself incriminating, but may lead to the government discovering incriminating evidence. Importantly, the court found that the passcodes were not corporate records, even though the smartphones themselves were property of the defendants' employer. The full opinion from SEC v. Huang et al is available here: US v. Huang et al - Opinion. This opinion is another win for privacy in the technological age. The 11th Circuit Court of Appeals in 2012 prohibited the government from forcing a defendant to decrypt his computer hard drive. In both that case and Huang, the court determined that the government did not have particularized knowledge of the contents of the encrypted device to be able to access the device under the "foregone conclusion" exception to Act of Production Immunity. Under the foregone conclusion case law, the act of providing access to a certain device (or safe or other private space) is not "testimonial" under the Fifth Amendment if the government can show with "reasonable particularity," "at the time it sought to compel the act of production, it already knew of the materials" being sought, which would make any testimonial aspect of providing access to the device a "foregone conclusion." This exception has the potential to swallow the rule, so privacy advocates should take heart that judges have required the government to have specific knowledge of the item(s) it seeks access to in order to avail itself of the foregone conclusion exception. The Fourth Circuit also recently enhanced the protections of individual privacy in its opinion US v. Graham - Opinion. In that case, the court determined that the government must obtain a warrant before reviewing historical cell-site location records (records that show approximately where a cell phone has been), at least when reviewing the records for an "extensive" 221 day period. (See Orin Kerr's discussion of the case at WaPo: Fourth Circuit adopts mosaic theory, holds that obtaining “extended” cell-site records requires a warrant.) Each of these cases show courts attempting to apply the Constitution to new technologies, and each of the rulings have important implications for Raleigh criminal defense attorneys in their attempts to protect the privacy of their clients. If you are being asked to disclose your computer password or cell phone passcode to police, call a criminal defense attorney.