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Your phone is still yours, for now
RICHARD WEINER
Technology for Lawyers
Published: November 13, 2015
As the Obama administration has seemingly, at least temporarily, given up on getting backdoor access to secured data, one federal court recently came down on the side of keeping secure information from the government.
Citing Fifth Amendment protections, one federal district court has ruled that a prosecutor has no right to the passcode of a password-protected cell phone in Securities and Exchange Commission v. Bonan Huang, et al., Eastern District of Penna., Opinion No. 15-269 (Sept. 23, 2015).
This case is just the tip of the iceberg on encryption cases, of course, and brings up an interesting technical point: iPhone encryption cannot be broken by the government, or even by Apple, where Android privacy settings may be able to be broken, according to at least one government-employed cell phone decrypter. So that may be a point to ponder as we go down this path.
The Huang case involved two insider trading suspects who had encoded phones owned by their former employer, Capital One, with that employer’s consent. The defendants were alleged to have used insider information to trade stock, making nearly $3 million in profit. The SEC wanted to see if the defendants’ phones held any data relative to those trades.
The decision did not specify what type of “smartphone” was at issue, which may be an issue at some point.
The court indicated that the SEC offered no evidence that either phone actually held any data, stating that: “Here, the SEC proffers no evidence rising to a “reasonable particularity” any of the documents it alleges reside in the passcode protected phones. Instead, it argues only possession of the smartphones and Defendants were the sole users and possessors of their respective work-issued smartphones. SEC does not show the “existence” of any requested documents actually existing on the smartphones. Merely possessing the smartphones is insufficient if the SEC cannot show what is actually on the device.”
Which is impossible, of course, without having the passcode.
You may access this case at: http://cdn.arstechnica.net/wp-content/uploads/2015/09/Huang.pdf