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Landmark Fifth Amendment case could have a big impact on law enforcement

Landmark Fifth Amendment case could have a big impact on law enforcement
PHOTO COURTESY OF SHUTTERSTOCK

When it comes to the federal government nailing white collar criminals, or trying to, you hear "I plead the Fifth" a lot from the accused. They're referring to the Fifth Amendment of the Constitution, which says suspected criminals do not have to incriminate themselves.

In other words, if a suspect is accused of crimes like insider trading, they don't have to divulge evidence that may be used against them. So, the government has to uncover that evidence themselves. In recent years, people like former IRS executive Lois Lerner have pleaded the Fifth, and avoided a trial.

In cases like that, people plead the Fifth to avoid saying something that will incriminate them. But what if those potentially damaging words are texts or emails hidden behind passwords?

Well, one judge in Pennsylvania says the Fifth Amendment protects people from incriminating themselves by divulging their smartphone password. The case involved two men accused of insider trading.

The Security and Exchange Commission wanted to examine their smartphones, which had been provided to them by their employer. However, their employer had also instructed its employees to choose their own passwords for those smartphones.

Judge Mark Kearney declared that the accused men were protected under the Fifth Amendment to not incriminate themselves. Meaning they didn't have to divulge their passwords to the SEC.

There is one more wrinkle to this. The SEC didn't have any knowledge that there is evidence on accused inside traders' smartphones. If they knew for certain that there was evidence, Judge Kearney says they would have to provide the SEC with their passwords.

However, the SEC can't just snoop around looking for evidence. They have to first know it exists, and where it exists, before someone has to legally provide it to them.

The SEC may appeal the judge's ruling to a higher court. Stay tuned, and keep reading Happening Now for updates.

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