We take a few decades back to the 1980s to launch the second in this series of posts. (In the interest of full disclosure, only one of us (guess who) was in the ’80s, and he was several moons away from practicing law.) Computers were present but not ubiquitous in offices only towards the end of the decade. Chances are, if a federal agent came into a company’s office in 1988 with a warrant to search its files, it would be tasked with collecting and combing through hundreds of thousands of pages of documents, both typed and handwritten, crammed into boxes and desks. and binders. Imagine then that the agent walks into the office of a corporate boss and finds a locked safe. Once the safe is open, she finds two folders inside: one marked “Work” and the other marked “Personal”. Assuming the search warrant is appropriately limited to company information only and is supported by probable cause, officers likely have the authority to search the “Work” file but not necessarily the “Personnel” file.

The problem, however, is that before our agent can even access the files, she has to open the safe – and that’s not an easy thing to do. Can the government require the company to open the safe so that the officer can find the file containing the working papers? Even if opening the safe would implicate the employee who opens it in a crime? After the Supreme Court decision in Braswell v. United States, 487 US 99 (1988), the answer is yes, in a way. Braswell tells us that corporations have no Fifth Amendment privilege against self-incrimination, and the corporation may be required to appoint a custodian to produce these documents on behalf of the corporation.

Fast forward to today, where the music of the 80s – thankfully – is still very much alive. As in our example from the 1980s, if a company finds itself trapped in an investigation, federal agents could one day show up with a warrant to search for company files on an employee’s smartphone. And just as they might with the company vault, if these devices are password protected, you can imagine that by invoking Braswell, the government could seek to force the company’s custodian to unlock the phone so agents can perform the search, without violating the Fifth Amendment.

But what if the only person who can unlock the device is the employee themselves? For many employees who use their personal cell phones to work as part of a BYOD policy, this may very well be the case. Does the employee have the right to refuse to unlock the device, even in response to a subpoena for company records? Turns out the answer isn’t that clear and may depend on what state or jurisdiction you are in. Although company employees do not have the right to refuse to produce company documents in their possession, they can invoke their Fifth Amendment. right to testify against
themselves. If providing a personal access code to unlock their phone is testimonial in nature, then the employee may well be able to assert their right to refuse the Fifth Amendment.
See, for example, SEC c. Huang, No. 15-269, 205 WL5611644 (ED Pa. 23 Sept. 2015) (arguing that because personal smartphone access codes were not corporate records and were testimonial in nature, the SEC did not could not force the disclosure of these passwords). But if unlocking your phone is not testimonial in nature, the employee may be forced to enter their password. As we discussed in our previous blog post in this series, courts are currently divided over whether individuals have the Fifth Amendment right to refuse to unlock their phones at the behest of the government. If the Indiana Supreme Court’s view prevails, the Fifth Amendment may prevent the government from forcing an employee to unlock their smartphone, but if the Massachusetts Supreme Court’s view prevails, it doesn’t. is not the case.

An employee’s decision to “take five” in these circumstances can have important ramifications for their employer. Among other things, good faith cooperation with a government investigation often helps to mitigate a company’s liability for any potential wrongdoing. By refusing to unlock their phone, an employee can undermine the company’s cooperative efforts. And in some circumstances, this may lead to an adverse inference of wrongdoing against the company in civil proceedings. See, for example, Libuti v. United States, 107 F.3d 110 (2d Cir. 1997). For these reasons, employers may decide to implement workplace policies requiring employees to cooperate with company investigations by unlocking their cell phones when asked, at the risk of putting employees in a position. difficult: to cooperate and possibly incriminate yourself, or invoke your Fifth Amendment rights and possibly lose your job. If an employer chooses to go this route, they should keep in mind that they may have legal obligations (under the California Consumer Privacy Act, for example, see 11 CCR § 999.305 (f)) to inform employees that the company may disclose their personal information to law enforcement, that is, by requiring employees to unlock their phones when asked. This might lessen the blow of employer policy, but it might not allay an employee’s fear of having to choose between their job and their Fifth Amendment rights.


In addition to its implications for company investigations, employers may have another reason to be concerned about the split between the courts over forced decryption. In jurisdictions where law enforcement officers can require individuals to unlock their mobile devices, employers might wonder if and how confidential business information on the device could be protected from disclosure during an investigation of the employees individual mischief. As anyone with a smartphone (which is almost everyone) knows, separating personal files from work files on the device is often not as easy as tagging folders in a safe. -fort “Work” and “Personal”. The downloaded files are mixed in a single “downloads” folder, personal and work calls all appear in the same log, and your email is probably a single app on your phone containing both your personal and work mailboxes.

This is where the Fourth Amendment and company policies come in. Like the Fifth Amendment considerations that underlie forced decryption, Fourth Amendment law is developing rapidly with respect to which folders, applications, and files government agents can search electronic devices under a given search warrant. . In our next blog post, we’ll talk about these developments and give our opinion on what policies employers could put in place to protect their confidential business data while awaiting clear guidance from the courts on whether law enforcement officers. order can force people to unlock their smartphones, and what files, folders, and apps they can search for once they have access to a device.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.