Accused Can Keep Passcodes Secret… Sometimes

Credit: Tristen Pelton via Creative Commons Licence (

Credit: Tristen Pelton via Creative Commons Licence (

A federal court has ruled that the fifth amendment can cover the passcode on an employee’s phone even if it was given to them by their employer.

The case involves two data analysts for Capital One who were accused of insider trading. The Securities and Exchange Commission believed it had the legal right to see the content of their work phones as part of its evidence gathering process.

However, the pair refused to hand over the passwords to their handsets, one of which was an iPhone 6 and the other a Galaxy S5. They argued that this was covered by the Fifth Amendment as providing the codes could incriminate them. The SEC countered that the fifth amendment doesn’t cover corporate records held by a former employee.

Asked to rule on the issue, the court upheld the employees’ argument. The judge said that regardless of the content on the phones, the codes themselves should count as personal information because the employees never shared the codes with their employers.

There were a couple of possible caveats to the nuances of the rulings. One is that in this case, employees keeping the codes secret from employers was part of Capital One’s company policy. The protection might not apply in another case where that was not stated policy, or where the policy said employees weren’t allowed to keep codes secret but had done so anyway.

Fortunately for the employees, they hadn’t written the codes down (again, in line with company policy.) While the judge didn’t address this hypothetical, a lawyer quoted by the Legal Intelligencer believes that a piece of paper with the codes on would count as a document rather than testimony and thus wouldn’t have fifth amendment protection.

Another aspect is that the lawyers for the employees had argued that even if the fifth amendment didn’t apply to this case, it could be irrelevant as they may have forgotten the codes and thus couldn’t literally be forced to hand them over. It’s not clear if the judge took this argument into account or whether this ruling could act as a precedent if such a situation did arise in another case.